/raid1/www/Hosts/bankrupt/CAR_Public/181228.mbx
C L A S S A C T I O N R E P O R T E R
Friday, December 28, 2018, Vol. 20, No. 260
Headlines
800FUND.COM: Fabricant Suit Asserts TCPA Violation
ABC FINANCIAL: Court Allows Filing of 1st Amended McKean Suit
ABM INDUSTRIES: $5.4MM Settlement Reached in Castro Class Action
ABM INDUSTRIES: Bucio Class Suit Underway in California
ABM INDUSTRIES: Hussein Class Settlement Granted Final Approval
AEG LIVE: Sued for Withholding Tickets to Elton John Concert
AIRBNB INC: Website Not Blind-accessible, Nixon Suit Alleges
ALJ REGIONAL: Bid to Remand Marshall Suit Still Pending
APHRIA INC: Jakobsen Hits Share Drop from Operational Flaws
APPTIO INC: Faces Trainer Securities Class Action in Delaware
ARTEX RISK: Shivkov et al. Sue over Captive Insurance Strategies
ASM USA: Fiorentino et al. Seek Overtime Pay for Brand Ambassadors
ASPEN INSURANCE: Court Approves Proposed Letter in Seeno
AT&S AMERICAS: Piper Suit Moved to Northern District of Illinois
AUROBINDO PHARMA: Faces Class Action Over Blood Pressure Drug
AWP INC: Kasiotis Sues Over Unpaid Earned Wages
BANK OF AMERICA: $126.3K Attorney's Fees Awarded in Antitrust Suit
BAYLOR SCOTT: CC and LC Suit Alleges ERISA Violation
BLUECROSS BLUESHIELD: Tenn. App. Affirms Class Certification Denial
BOCCA BLISS 725: Fails to Pay Proper Wages, Cuahutle et al. Say
BOJANGLES' INC: Crowley Balks at Merger Deal with Durational
BROADCOM INC: Suits over Brocade Acquisition Dismissed
BROADCOM INC: Suits Related to CA, Inc. Acquisition Dismissed
BROOME COUNTY, NY: Juvenile Solitary Confinement Suit Deal Has OK
BUCKEYE SHAKER: Fails to Pay Proper Wages, Coffey Suit Alleges
C&I ENGINEERING: Ludlum Seeks to Recover Unpaid Overtime Wages
CALIFORNIA: Harassed Licensed Cannabis Businesses, Suit Claims
CAMBA, INC: Dockery et al. Seek Prevailing Wages for Services
CANADA: Cecil Facer School Students Part of Abuse Class Action
CHEETAH MOBILE: Jan. 29 Lead Plaintiff Motion Deadline Set
CHOICES BEHAVIORAL: Kendrick Sues Over Unpaid Compensation
CIENA CORP: Settlement Reached in Beaver County Fund Suit
CIGNA CORP: Court Awards $184K Attorney's Fees in Amara ERISA Suit
CLEAR CHANNEL: Settlement Entered in GAMCO & Norfolk Suit
COMPUWARE CORP: Mich. App. Affirms Summary Judgment in Karmanos
CONNECTICUT: Court Grants Bid to Amend Barfield ADA Suit
COSTCO WHOLESALE: Canela Suit Stayed Pending 9th Cir. Appeal
CSC HOLDINGS: Court Narrows Claims in D. Zemel's TCPA Suit
CULLIGAN INTERNATIONAL: Kapp Sues over Telemarketing Phone Calls
CURO GROUP: Keller Lenkner Files Securities Class Action
EDMUND'S HOLDINGS: Garner Sues Over Illegal SMS Ads
ELECTRO SCIENTIFIC: Faces Klein Securities Suit Over MKS Merger
ELECTRONIC TRANSACTION SYSTEMS: Sued for Showing Credit Card Info
ENJOY THE CITY: Underpays Sales Associates, Dexheimer Suit Says
FEDEX GROUND PACKAGE: Removes Dolan Suit to C.D. California
FIRST STUDENT: Galvan Suit Moved to Northern Dist. of California
GANNETT CO: Attorney Balks at Class Action Objectors
GENCO I: April 2 Hearing on Final Approval of Ortiz Settlement
GLAD PRODUCTS: Wallach and Starke Sue over Mislabeled Trash Bag
GREENWICH RETAIL: Website not Accessible to Blind, Dennis Says
GREIF INC: Suit over Noxious Odor at Wisconsin Plant Ongoing
GROUPON INC: Class Action Properly Moved Out of State Court
HASS INTERESTS: Dimery Seeks Unpaid OT wages under FLSA
HORTONWORKS INC: Faruqi & Faruqi Files Securities Class Action
ILLINOIS: Court Dismisses Transgender Women's Suit vs. IDOC
INDEPENDENCE, MO: IPL Customers Sue Over Billing Issues
INMATE SERVICES: Hall Sues to Recover Unpaid Overtime, Last Pay
INTERNATIONAL LASER: Alvarado Suit Alleges FLSA Violations
KIMBERLY DERSTINE: Logan Seeks Minimum & OT Wages
KYC INSURANCE: Abante Rooter Sues over Unwanted Telephone Calls
LAKE POINTE, NC: Former Resident Files Class Action
LOG CREEK: Leopard Sues Over Unpaid Overtime Premiums
LOMA NEGRA: Feb. 4 Lead Plaintiff Motion Deadline Set
LOUIS BERGER: Ojeda Seeks Overtime Wages for Mechanics
LYFT INC: Must Face Class Action Over ADA Violations
LYFT INC: NY Court Narrows Claims in Lowell ADA Suit
MARRIOTT INT'L: Stays Mum on Data Breach Class Actions
MARRIOTT INTERNATIONAL: Cottrell Sues Over Data Breach
MARRIOTT INTERNATIONAL: Faces King Suit Over Data Breach
MARRIOTT INTERNATIONAL: Mortensen Sues over Data Breach
MARYLAND TRANSIT: Johnson et al. Suit Moved to Maryland Dist. Court
MDL 2624: April 19 Settlement Fairness Hearing
MIRAMED REVENUE: Carnes Sues over Debt Collection Practices
MODESTO, CA: Embraces Report Justifying Electricity, Water Rates
NATIONAL FUNDING: Walling Seeks Earned Wages for Sale Reps
NAUTICAL SERVICES: Iaccarino Seeks Unpaid Overtime Wages
NCI BUILDING: Faces Voigt Stockholder Class Action
NEBRASKA: Feb. 19 Deadline to File Bid to Certify Sabata Class
NEVADA GOLD: Faces Maverick Casinos Merger-Related Suits
NEVADA GOLD: Kikendall Suit Seeks to Enjoin Sale to Maverick
NEW YORK: Court Approves Revised Consent Decree Suit vs. NYCHA
NEWCOMB OIL: Southard Seeks Overtime Pay for Attendants
NMRR INC: Fails to Pay Proper Wages to Caregivers, Lee Says
NORTHSTAR LOCATION: Faces Marranca FDCPA Suit in New Jersey
OCEAN SPRAY: Court Certifies Hilsley Class
ONE STOP: Aguilar et al. Seek unpaid wages under FLSA
PACIFIC GAS: Faces Class Action Over Deadly Wildfire
PACIFIC GAS: Lieff Cabraser, Edelson File Wildfire Class Action
PAX VILLA: Fortuna Seeks Unpaid, Underpaid Overtime Wages
PCM SALES: Fails to Pay OT Wages Under FLSA, Hirsch Suit Claims
PDAM TIRTA: YLKI Files Class Action Over Water Price Hike
PEPSICO INC: Oat Products Contain Glyphosate, Suit Claims
PETRO RIVER: Appeal in in Donelson-Friend Suit Still Pending
PG&E CORPORATION: Faces Suit Over Damage Caused by Wildfire
PORTER MCGUIRE: Bid to Dismiss Improper Foreclosure Claim Denied
PPL CORP: Talen Montana Retirement Plan Suit Moved to D. Montana
PREMIERE CARE: Underpays Caregivers, Lee Suit Alleges
PRIME COMMUNICATIONS: Fryer Sues Over Unpaid Overtime Wages
PSC INC: Court Certifies Miller Class in CPA Suit
REAL TIME RESOLUTIONS: Wade Alleges Wrongful Debt Collections
REGUS MANAGEMENT: 9th Cir. Affirms Class Certification Denial
REV GROUP: Defending Suits over 2017 IPO
RICE DRILLING: Accused by J&R Passmore of Trespassing Properties
ROBERT A. SCHUERGER CO: Presley Alleges Wrongful Debt Collections
SAMSUNG ELECTRONICS: Phones' Pixel Count Misleading, Suit Claims
SANDERSON FARMS: Bid to Dismiss North Carolina Suit Still Pending
SANDERSON FARMS: Kansas Class Suit Transferred to Illinois
SANDERSON FARMS: Plaintiffs' Appeal in Securities Suit Underway
SANOFI PASTEUR: Troutman Sanders Attorneys Discuss Court Ruling
SARGENTO: Judge Denies Request to Revive "Natural" Class Action
SB ONE: Faces Parshall Suit in Enterprise Bank Merger Deal
SECURITAS CRITICAL: Cal. App. Affirms Myles Certification Denial
SEQUOIA FUND: Ruling in Edwards and Fortune Suit under Appeal
SHILOH INDUSTRIES: Time to Appeal N.Y. Class Suit Already Expired
SIDEPOINT INC: Court Extends Time to Respond in Carlson Suit
SPARE RIB: Fails to Pay Proper Wages to Cooks, Cantor Marcia Says
SSP AMERICA: Faces Moomau Labor Suit in California State Court
STALLION OILFIELD: Bourque Suit Transferred to S.D. Texas
STERICYCLE INC: Settlement Reached in Illinois Securities Suit
TABITHA INC: Fails to Pay Proper Wages, Cotton Suit Alleges
TERNIUM SA: Faces Class Action Over Securities Violations
TIGER BRANDS: May Have to Pay Up to ZAR2MM to Listeriosis Victims
TOLEDO, OH: Court Narrows Doc Production in P. Ball's ADA Suit
TRANS UNION LLC: Court Grants Final Approval of Larson Settlement
TRANS WORLD: Faces Loyalty Memberships an Subscriptions Class Suit
TUXEDOS OF WATERLOO: Beard Suit Alleges FLSA Breach
TYC, LLC: Bourlier Seeks Minimum & Overtime Wages
UBER TECHNOLOGIES: Retirement Fund Can File 50+ Page Brief
UNITED STATES: Faces Habeas Corpus Suit in S.D. New York
VAN RU CREDIT: Alexander-Shrout Sues over Unwanted Phone Calls
VISITING NURSE: McKoy Seeks Overtime Pay for Customer Service Reps
WALGREENS BOOTS: Sold Mislabeled Tylenol Gelcaps, Brown Claims
WALLGREENS BOOTS: Delaware Class Suits Dismissed
WALLGREENS BOOTS: Merit Discovery Underway in Illinois Suit
WALLGREENS BOOTS: Rite Aid Merger-Related Suit Still Ongoing
WARNER MUSIC: Class Suit over Digital Download Pricing Dismissed
WCA MANAGEMENT: Fails to Pay OT to Drivers, Cash et al. Claim
WINCO FOODS: 9th Cir. Remands Mitchell FCRA Suit
XO GROUP: Rigrodsky & Long Files Securities Class Action
XPO LOGISTICS: Labul Sues Over False, Misleading Reports
XPO LOGISTICS: Leeman Sues Over Misstated Financial Reports
YAHOO! INC: Womble Bond Discusses Ruling in TCPA Class Action
Asbestos Litigation
ASBESTOS UPDATE: 197 Cases vs. CECO Still Pending at Sept. 30
ASBESTOS UPDATE: 28-Year Asbestos Class Action Settled
ASBESTOS UPDATE: ADEQ Inks CAO Addressing Asbestos Rules
ASBESTOS UPDATE: ArvinMeritor Had 1,400 Pending Claims at Sept. 30
ASBESTOS UPDATE: ArvinMeritor Had US$105MM Reserves at Sept. 30
ASBESTOS UPDATE: Asbestos Coverage Issues Addressed in Carrier Corp
ASBESTOS UPDATE: Ashland Global Had $380MM Reserve at Sept. 30
ASBESTOS UPDATE: Ashland Global Had 53,000 Open Claims at Sept. 30
ASBESTOS UPDATE: Bradshaw Couple Sues Ford Motor Over Lung Cancer
ASBESTOS UPDATE: C. Petrie Sues Novelis Over Husband's Cancer
ASBESTOS UPDATE: Cabot Corp. Faces 35,000 AO Claimants at Sept. 30
ASBESTOS UPDATE: Canada Asbestos Ban Takes Effect Dec. 30
ASBESTOS UPDATE: Castleton Firm Fined $10K in Asbestos Case
ASBESTOS UPDATE: Doctor Exposed to Asbestos in Hospital
ASBESTOS UPDATE: Emerson Electric Had $334MM Liability at Sept. 30
ASBESTOS UPDATE: Enstar Group Had US$187.9MM Liability at Sept. 30
ASBESTOS UPDATE: G. Day Says Wife Had Secondary Asbestos Exposure
ASBESTOS UPDATE: Hercules LLC Had 13,000 Open Claims at Sept. 30
ASBESTOS UPDATE: Hercules LLC Had US$282MM Reserve at Sept. 30
ASBESTOS UPDATE: HII Continues to Defend PI Claims at Sept. 30
ASBESTOS UPDATE: J. Valley Sue Ametek Over Asbestos Exposure
ASBESTOS UPDATE: Johnson Controls Has $550MM Liability at Sept. 30
ASBESTOS UPDATE: Judge Dismisses Ahnert Claims vs. EICW, et al.
ASBESTOS UPDATE: Judge Dismisses Clayton Claims vs. North Coast
ASBESTOS UPDATE: Maremont Corp Had 1,700 Claims Pending at Sept. 30
ASBESTOS UPDATE: Maremont Corp. Had US$109MM Reserves at Sept. 30
ASBESTOS UPDATE: Mass. Co. Faces $28K Asbestos Penalty
ASBESTOS UPDATE: MetLife Unit Had 2,558 New Cases Jan-Sept. 2018
ASBESTOS UPDATE: MoD Probes Asbestos in Sea King Helicopters
ASBESTOS UPDATE: NY Court Won't Reconsider Asbestos Judgment
ASBESTOS UPDATE: Rigsby Couple Sues Dow Chemical Over Lung Cancer
ASBESTOS UPDATE: Rockwell Automation Still Faces Suits at Sept. 30
ASBESTOS UPDATE: Ship Builder Beats Asbestos Lawsuits
ASBESTOS UPDATE: Smith Couple Sues 20th Century Over Lung Cancer
ASBESTOS UPDATE: Study Undermines Theory on Asbestos Lawsuits
ASBESTOS UPDATE: Tenneco Faces Less Than 500 Cases at Sept. 30
ASBESTOS UPDATE: Trust Assessed $16.8K for Asbestos Violations
ASBESTOS UPDATE: WestRock Co. Had 735 PI Suits at Sept. 30
ASBESTOS UPDATE: Wife Poisoned by Asbestos in Husband's Moustache
*********
800FUND.COM: Fabricant Suit Asserts TCPA Violation
--------------------------------------------------
Terry Fabricant, individually and on behalf of all others similarly
situated, Plaintiff, v. 800fund.com, LLC and Does 1 through 10,
inclusive, and each of them, Defendants, Case No. 2:18-cv-10434
(C.D. Cal., December 17, 2018) seeks damages and any other
available legal or equitable remedies resulting from the illegal
actions of Defendants, in negligently, knowingly, and/or willfully
contacting Plaintiff on Plaintiff's cellular telephone in violation
of the Telephone Consumer Protection Act, thereby invading
Plaintiff' privacy.
Beginning in or around December 6, 2017, Defendant contacted
Plaintiff on his cellular telephone. Defendant's calls constituted
calls that were not for emergency purposes. Plaintiff is not a
customer of Defendant's services and has never provided any
personal information, including his cellular telephone numbers, to
Defendant for any purpose whatsoever. In addition, Plaintiff told
Defendant at least once to stop contacting them and Plaintiff has
been registered on the Do-Not-Call Registry for at least 30 days
prior to Defendant contacting him. Accordingly, Defendant never
received Plaintiff' "prior express consent" to receive calls using
an automatic telephone dialing system or an artificial or
prerecorded voice on their cellular telephone, says the complaint.
Terry Fabricant, is a natural person residing in Los Angeles,
California.
800fund.com, LLC, is a marketing company.
The true names and capacities of the Defendants sued herein as Doe
Defendants 1 through 10, inclusive, are currently unknown to
Plaintiff, who therefore sues such Defendants by fictitious
names.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Law Offices of Todd M. Friedman, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Phone: (323) 306-4234
Fax: (866)633-0228
Email: tfriedman@toddflaw.com
abacon@toddflaw.com
ABC FINANCIAL: Court Allows Filing of 1st Amended McKean Suit
-------------------------------------------------------------
In the case, JACOB McKEAN, individually, on behalf of himself and
all others similarly situated, Plaintiff, v. ABC FINANCIAL
SERVICES, INC., an Arkansas Corporation; THE ARENA MARTIAL ARTS, a
business entity form unknown, Defendants, Case No.
3:18-cv-00923-WQH-RBB (S.D. Cal.), Judge William Q. Hayes of the
U.S. District Court for the Southern District of California granted
the Plaintiff's Motion for an Order Granting Plaintiff Leave to
File First Amended Complaint.
On Oct. 25, 2018, the Court granted the motion to dismiss filed by
Defendant ABC. On Nov. 13, 2018, the Plaintiff filed a Motion for
an Order Granting Plaintiff Leave to File First Amended Complaint.
On Dec. 3, 2018, the Defendant filed Opposition.
On Dec. 4, 2018, the Plaintiff filed an Ex Parte Application for a
continuance and an order granting his request that the
redacted/redlined Proposed FAC attached to the Dec. 4, 2018 Ex
Parte Application be filed nunc pro tunc, as of Nov. 13, 2018. On
Dec. 5, 2018, the Defendant filed Opposition to the Ex Parte
Application.
On Dec. 6, 2018, the Court granted in part and denied in part the
Plaintiff's Dec. 4, 2018 Ex Parte Application, ordering that the
Plaintiff's redlined copy of the FAC be filed nunc pro tunc as of
Nov. 13, 2018 and denying the Plaintiff's request for a
continuance.
The Defendant's sole contention in opposition to the Plaintiff's
Motion is that the Plaintiff failed to comply with Local Rule
15.1(c) when he did not attach a redlined copy of the proposed FAC
to his Motion. The Defendant indicated that if the Plaintiff is
permitted to file the FAC, it will address all substantive defects
in the proposed first amended complaint in a motion to dismiss.
On Dec. 6, 2018, the Court Ordered that the Plaintiff's redlined
copy of the FAC be filed nunc pro tunc as of Nov. 13, 2018,
remedying the Plaintiff's violation of Local Rule 15.1(c). Judge
Hayes finds that the Defendant has failed to show it would suffer
prejudice if the Plaintiff's Motion were granted, and the Judge
finds that there has been no showing that any of the remaining
Foman factors warrants deviating from the presumption under Rule
15(a) in favor of granting leave to amend.
For these reasons, Judge Hayes granted the Plaintiff's Motion. The
Plaintiff may file the proposed FAC by Jan. 2, 2019.
A full-text copy of the Court's Dec. 18, 2018 Order is available at
https://is.gd/qQq3dJ from Leagle.com.
Jacob McKean, individually, on behalf of himself and all others
similarly situated, Plaintiff, represented by Daniel R. Shinoff --
dshinoff@as7law.com -- Artiano Shinoff, Gil Abed --
GABED@AS7LAW.COM -- Artiano Shinoff, Paul Vincent Carelli, IV --
PCARELLI@AS7LAW.COM -- Artiano Shinoff & Sheldon A. Ostroff, Law
Offices of Sheldon A Ostroff.
ABC Financial Services, Inc., a Arkansas corporation, Defendant,
represented by Aneiko L. Hickerson -- ahickerson@burnhambrown.com
-- enkins Goodman Neuman & Hamilton LLP & Robert M. Bodzin --
rbodzin@burnhambrown.com -- Burnham Brown.
ABM INDUSTRIES: $5.4MM Settlement Reached in Castro Class Action
----------------------------------------------------------------
ABM Industries Incorporated said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on December 21, 2018,
for the fiscal year ended October 31, 2018, that parties in the
case, Castro and Marmolejo v. ABM Industries, Inc., et al., have
agreed to a class action settlement of $5.4 million, subject to
court approval.
On October 24, 2014, Plaintiff Marley Castro filed a class action
lawsuit alleging that ABM did not reimburse janitorial employees in
California for using their personal cell phones for work-related
purposes, in violation of California Labor Code section 2802.
On January 23, 2015, Plaintiff Lucia Marmolejo was added to the
case as a named plaintiff. On October 27, 2017, plaintiffs moved
for class certification seeking to represent a class of all
employees who were, are, or will be employed by ABM in the State of
California with the Employee Master Job Description Code "Cleaner"
(hereafter referred to as "Cleaner Employees") beginning from
October 24, 2010.
ABM filed its opposition to class certification on November 27,
2017. On January 26, 2018, the district court granted plaintiffs'
motion for class certification.
The court rejected plaintiffs' proposed class, instead certifying
three classes that the court formulated on its own: (1) all
employees who were, are, or will be employed by ABM in the State of
California as Cleaner Employees who used a personal cell phone to
punch in and out of the EPAY system and who (a) worked at an ABM
facility that did not provide a biometric clock and (b) were not
offered an ABM-provided cell phone during the period beginning on
January 1, 2012, through the date of notice to the Class Members
that a class has been certified in this action; (2) all employees
who were, are, or will be employed by ABM in the State of
California as Cleaner Employees who used a personal cell phone to
report unusual or suspicious circumstances to supervisors and were
not offered (a) an ABM-provided cell phone or (b) a two-way radio
during the period beginning four years prior to the filing of the
original complaint, October 24, 2014, through the date of notice to
the Class Members that a class has been certified in this action;
and (3) all employees who were, are, or will be employed by ABM in
the State of California as Cleaner Employees who used a personal
cell phone to respond to communications from supervisors and were
not offered (a) an ABM-provided cell phone or (b) a two-way radio
during the period beginning four years prior to the filing of the
original complaint, October 24, 2014, through the date of notice to
the Class Members that a class has been certified in this action.
On February 9, 2018, ABM filed a petition for permission to appeal
the district court's order granting class certification with the
United States Court of Appeals for the Ninth Circuit, which was
denied on April 30, 2018.
On March 20, 2018, ABM moved to compel arbitration of the claims of
certain class members pursuant to the terms of three collective
bargaining agreements. In response to that motion, on May 14, 2018,
the district court modified the class definition to exclude all
claims arising after the operative date(s) of the applicable
collective bargaining agreements (which is June 1, 2016 for one
agreement and May 1, 2016 for the other two agreements).
However, the district court denied the motion to compel arbitration
as to claims that arose prior to the operative date(s) of the
applicable collective bargaining agreements. ABM has appealed to
the Ninth Circuit the district court's order denying the motion to
compel arbitration with respect to the periods preceding the
operative dates of the collective bargaining agreements.
After a court-ordered mediation held on October 15, 2018, the
parties agreed to a class action settlement of $5.4 million,
subject to court approval.
ABM Industries said, "We anticipate the plaintiffs' motion for
preliminary approval will be filed with the court in the first
quarter of fiscal year 2019, and a hearing on the motion is
expected in the first or second quarter of fiscal year 2019."
ABM Industries Incorporated provides integrated facility solutions
in the United States and internationally. The company operates
through Business & Industry, Aviation, Technology & Manufacturing,
Education, Technical Solutions, and Healthcare segments. ABM
Industries Incorporated was founded in 1909 and is headquartered in
New York, New York.
ABM INDUSTRIES: Bucio Class Suit Underway in California
-------------------------------------------------------
ABM Industries Incorporated said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on December 21, 2018,
for the fiscal year ended October 31, 2018, that the consolidated
class action lawsuit, Bucio and Martinez v. ABM Janitorial
Services, filed on April 7, 2006, in the Superior Court of
California, County of San Francisco or the "Bucio case", is still
ongoing.
The Bucio case is a class action pending in San Francisco Superior
Court that alleges that the company failed to provide legally
required meal periods and make additional premium payments for such
meal periods, pay split shift premiums when owed, and reimburse
janitors for travel expenses. There is also a claim for penalties
under the California Labor Code Private Attorneys General Act
("PAGA").
On April 19, 2011, the trial court held a hearing on plaintiffs'
motion to certify the class. At the conclusion of that hearing, the
trial court denied plaintiffs' motion to certify the class. On May
11, 2011, the plaintiffs filed a motion to reconsider, which was
denied. The plaintiffs appealed the class certification issues.
The trial court stayed the underlying lawsuit pending the decision
in the appeal. The Court of Appeal of the State of California,
First Appellate District (the "Court of Appeal"), heard oral
arguments on November 7, 2017. On December 11, 2017, the Court of
Appeal reversed the trial court's order denying class certification
and remanded the matter for certification of a meal period, travel
expense reimbursement, and split shift class.
The case was remitted to the trial court for further proceedings on
class certification, discovery, dispositive motions, and trial.
On September 20, 2018, the trial court entered an order defining
four certified subclasses of janitors who were employed by the
legacy ABM janitorial companies in California at any time between
April 7, 2002 and April 30, 2013, on claims based on previous auto
deduction practices for meal breaks, unpaid meal premiums, unpaid
split shift premiums, and unreimbursed business expenses, such as
mileage reimbursement for use of personal vehicles to travel
between worksites.
The period of time covered by the PAGA claim will also be
considered by the court shortly.
ABM Industries said, "This matter has not been set for trial. Prior
to trial, we will have the opportunity to move for summary
judgment, seek decertification of the classes, or mediate, if we
deem such actions appropriate."
ABM Industries Incorporated provides integrated facility solutions
in the United States and internationally. The company operates
through Business & Industry, Aviation, Technology & Manufacturing,
Education, Technical Solutions, and Healthcare segments. ABM
Industries Incorporated was founded in 1909 and is headquartered in
New York, New York.
ABM INDUSTRIES: Hussein Class Settlement Granted Final Approval
---------------------------------------------------------------
ABM Industries Incorporated said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on December 21, 2018,
for the fiscal year ended October 31, 2018, that the settlement of
the case, Hussein and Hirsi v. Air Serv Corporation, has been
granted final approval.
The Hussein case was a certified class action involving a class of
certain hourly Air Serv employees at Seattle-Tacoma International
Airport in SeaTac, Washington.
The plaintiffs alleged that Air Serv violated a minimum wage
requirement in an ordinance applicable to certain employers in the
local city of SeaTac (the "Ordinance").
Plaintiffs sought retroactive wages, double damages, interest, and
attorneys' fees. This matter was removed to federal court.
In a separate lawsuit brought by Filo Foods, LLC, Alaska Airlines,
and several other employers at SeaTac Airport, the King County
Superior Court (the "Superior Court") issued a decision that
invalidated the Ordinance as it applied to workers at SeaTac
Airport.
Subsequently, the Washington Supreme Court reversed the Superior
Court's decision.
On February 7, 2017, the Isse case was filed against Air Serv on
behalf of 60 individual plaintiffs (who would otherwise be members
of the Hussein class), who alleged failure to comply with both the
minimum wage provision and the sick and safe time provision of the
Ordinance.
The Isse plaintiffs sought retroactive wages and sick benefits,
double damages for wages and sick benefits, interest, and
attorneys' fees. The Isse case later expanded to approximately 220
individual plaintiffs.
In mediations on November 2 and 3, 2017, and without admitting
liability in either matter, the company agreed to settle the
Hussein and Isse cases for a combined total of $8.3 million,
inclusive of damages, interest, attorneys' fees, and employer
payroll taxes.
Eligible employees will be able to participate in either the
Hussein or Isse settlements, but cannot recover in both
settlements. The settlements in both cases require court approval
because of the nature of the claims being released. On December 8,
2017, the Superior Court approved the settlement agreement for the
220 Isse plaintiffs, and the company subsequently made a settlement
payment of $4.5 million to the Isse plaintiffs in January 2018.
$3.8 million remains accrued for the Hussein case.
On July 30, 2018, the United States District Court for the Western
District of Washington at Seattle preliminarily approved the
settlement in the Hussein case.
At the final approval hearing on December 4, 2018, the court (i)
accepted opt-out notices from 78 Hussein class members (the
"opt-out members") indicating their intent to participate in
separate lawsuits (leaving 386 class members in the Hussein class),
(ii) directed the parties to recalculate the settlement amount by
deducting the settlement funds attributable to the 78 opt-out
members, and (iii) requested other minor changes, but indicated
that the court intended to grant final approval of the settlement
with these changes.
On December 20, 2018, the court issued its order granting final
approval of the class action settlement. The Hussein settlement
funds will be paid in February 2019, provided there are no appeals
or requests for review of the final approval order. The amount of
the settlement funds attributable to the 78 opt-out members is
approximately $0.9 million.
ABM Industries Incorporated provides integrated facility solutions
in the United States and internationally. The company operates
through Business & Industry, Aviation, Technology & Manufacturing,
Education, Technical Solutions, and Healthcare segments. ABM
Industries Incorporated was founded in 1909 and is headquartered in
New York, New York.
AEG LIVE: Sued for Withholding Tickets to Elton John Concert
------------------------------------------------------------
ALAN EINSBRUCH, on behalf of himself and the putative class, the
Plaintiffs, vs. AEG LIVE, LLC, AEG LIVE NJ, LLC, CONCERTS WEST,
MARSHALL ARTS LTD., ELTON JOHN, DEVILS ARENA ENTERTAINMENT d/b/a
PRUDENTIAL CENTER, and ABC COMPANIES 1-10, the Defendants, Case No.
ESX-L-008834-18 (N.J. Sup. Ct., Dec. 14, 2018), seeks damages and
compensation to Plaintiff and all class members from Defendants,
interest, disgorgement, costs of suit, treble damages and
attorneys' fees as permitted under the New Jersey Consumer Fraud
Act and/or the common law, and any other damages deemed just and
proper by the Court.
According to the complaint, AEG Live, LLC, AEG Live NJ, LLC, and
Concerts West are the promoters for Elton John's Farewell Yellow
Brick Road tour. The Tour comes to the Prudential Center in Newark
on March 2, 2019 (the "Concert"). The Defendants sold tickets to,
and were responsible for the distribution and allocation of tickets
for, the Tour. There exists within the entertainment
industry a customary practice of withholding a percentage of
tickets from public sale either through contractual obligations or
by way of habit and custom. Commonly known as "holds", these
tickets are reserved for persons and groups such as event
promoters, sponsors, performers, entertainment critics, celebrities
and local dignitaries. The Defendants, in fact, reserved tickets
pursuant to contractual obligations and/or habit and custom for the
Concert.
Some of these holds are then sold to ticket brokers who the tickets
on the secondary market. The effect of Defendants' withholding of
tickets is the limitation of available seats that the general
public can purchase at face value which increases demand for
tickets on the secondary market. For example, in AEG's contract
with Michael Jackson the contract states that "Promoter shall
control ticket sales and secondary ticket activities, with
inventory for ticket auctions and other secondary ticket programs
in a first hold position." Consistent with this standard
contractual arrangement, Defendants controlled ticket sales and
secondary ticket activity for the Tour and withheld tickets from
sale to the general public, limiting the number of available seats
and increasing demand in the secondary market.
The Defendants withheld, and continue to withhold, tickets from
sale to the general public for the benefit of, inter alia, the
venue, sponsors, artists, media outlets, and other insiders for the
Concert. The Defendants' withholding of tickets limits the general
public's access to tickets and forces fans into a secondary market
for the tickets where they must pay substantially more than the
ticket's face value to attend some of the most popular and iconic
concerts. The Defendants withheld more than 5% of all available
seats to the Elton John Concert on March 2, 2019 in violation of
the CFA that resulted in damage to the Plaintiff Class, the lawsuit
says, the lawsuit says.[BN]
Attorneys for Plaintiff and Putative Class:
Bruce H. Nagel, Esq.
NAGEL RICE, LLP
103 Eisenhower Parkway
Roseland, NJ 07068
Telephone: 973 618-0400
AIRBNB INC: Website Not Blind-accessible, Nixon Suit Alleges
------------------------------------------------------------
Donald Nixon, on behalf of himself and others similarly situated v.
Airbnb, Inc., Case No. 1:18-cv-06679 (E.D. N.Y., November 21,
2018), seeks to put an end to systemic civil rights violations
committed by the Defendant under the Americans with Disability
Act.
The Plaintiff commences this civil rights action against the
Defendant for the Defendant's failure to design, construct,
maintain, and operate its website to be fully accessible to and
independently usable by the Plaintiff and other similarly situated
blind or visually-impaired persons. The Defendant's denial of full
and equal access to its website, and therefore denial of its
products and services offered thereby and in conjunction with its
physical location, is a violation of the Plaintiff’s rights under
the ADA, says the complaint.
The Plaintiff, Donald Nixon was a resident of Queens County. The
Plaintiff is a legally blind, visually-impaired, handicapped person
and a member of a protected class of individuals under the ADA.
The Defendant operates physical corporate office locations as well
as the www.airbnb.com website, and advertises, markets access to
apartments, condos and houses for short and long term stays to
their consumers both in the State of New York and throughout the
United States. The Defendant operates multiple offices across the
United States, one of which is located at 627 Broadway, New York,
NY 10012. [BN]
The Plaintiff is represented by:
Jonathan Shalom, Esq.
SHALOM LAW, PLLC
124-04 Metropolitan Avenue
Kew Gardens, NY 11415
Tel: (718) 971-9474
Fax: (718) 865-0943
E-mail: Jshalom@jonathanshalomlaw.com
ALJ REGIONAL: Bid to Remand Marshall Suit Still Pending
-------------------------------------------------------
ALJ Regional Holdings, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on December 17, 2018,
for the fiscal year ended September 30, 2018, that the motion to
remand the class action suit filed by Donna Marshall has been fully
briefed and argued and remains pending before the court.
On July 31, 2017, plaintiff Donna Marshall ("Marshall"), filed a
proposed class action lawsuit in the Superior Court of the State of
California for the County of Sacramento against Faneuil and ALJ.
Marshall, a previously terminated Faneuil employee, alleges various
California state law employment-related claims against Faneuil.
Faneuil has answered the complaint and removed the matter to the
United States District Court for the Eastern District of
California; however, Marshall filed a motion to remand the case
back to state court. The motion to remand has been fully briefed
and argued and remains pending before the court.
The case is in early discovery at this time. Faneuil believes this
action is without merit and intends to defend it vigorously.
No further updates were provided in the Company's SEC report.
ALJ Regional Holdings, Inc. provides call center, back office,
staffing, and toll collection services to government and commercial
clients in the healthcare, utility, toll, and transportation
industries in the United States. It operates through three
segments: Faneuil, Carpets, and Phoenix. The company was formerly
known as YouthStream Media Networks, Inc. and changed its name to
ALJ Regional Holdings, Inc. in October 2006. ALJ Regional Holdings,
Inc. was founded in 1995 and is based in New York, New York.
APHRIA INC: Jakobsen Hits Share Drop from Operational Flaws
-----------------------------------------------------------
Edvin Jakobsen, individually and on behalf of all others similarly
situated, Plaintiff, v. Aphria Inc., and Victor Neufeld,
Defendants, Case No. 18-cv-11376, (S.D. N.Y., December 5, 2018),
Defendants, seeks to pursue remedies under the Securities Exchange
Act of 1934.
Aphria is a Canadian firm that produces and sells medical cannabis.
Its recent acquisitions in Latin America allegedly lacked adequate
licenses to operate and were overvalued. On this news, the company
share price fell $1.85 per share, or over 23%, to close at $6.05
per share on December 3, 2018, on unusually heavy trading volume,
notes the complaint.
Jakobsen purchased Aphria securities and lost during corrective
disclosures. [BN]
The Plaintiff is represented by:
Lesley F. Portnoy, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Ave., Suite 530
New York, NY 10169
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
- and -
Lionel Z. Glancy, Esq.
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
Email: info@glancylaw.com
- and -
Howard G. Smith, Esq.
LAW OFFICES OF HOWARD G. SMITH
3070 Bristol Pike, Suite 112
Bensalem, PA 19020
Telephone: (215) 638-4847
Facsimile: (215) 638-4867
APPTIO INC: Faces Trainer Securities Class Action in Delaware
-------------------------------------------------------------
Apptio, Inc. said in its Form 8-K filing with the U.S. Securities
and Exchange Commission filed on December 17, 2018, that the
company faces a purported stockholder class action suit entitled,
Jeffrey Trainer v. Apptio, Inc., et al., Case No. 1:18-cv-01983.
On December 13, 2018, a purported stockholder class action lawsuit
captioned Jeffrey Trainer v. Apptio, Inc., et al., Case No.
1:18-cv-01983, was filed in the United States District Court for
the District of Delaware against the Company and its directors.
The lawsuit alleges, generally, that the Company and its directors
violated Section 14(a) of the Securities Exchange Act of 1934 (the
"Exchange Act"), and Rule 14a-9 thereunder by purportedly omitting
material information from the proxy statement issued in connection
with the Merger.
The lawsuit also purports to allege violations of Section 20(a) of
the Exchange Act against the Company's directors. The lawsuit
seeks, among other things, equitable relief that would enjoin the
consummation of the proposed Merger, rescission of the proposed
Merger to the extent it is consummated, and attorneys' fees and
costs. Additional similar lawsuits may be filed in the future.
The Company believes that the plaintiff's allegations lack merit
and will vigorously defend against this and any subsequently filed
similar actions.
Apptio, Inc. provides cloud-based technology business management
(TBM) solutions to enterprises. Its cloud-based platform and SaaS
applications enable IT leaders to analyze, optimize, and plan
technology investments, as well as to benchmark financial and
operational performance against peers. The company operates in the
United States, the United Kingdom, Germany, Denmark, the
Netherlands, Australia, Canada, France, Singapore, and Italy.
Apptio, Inc. was founded in 2007 and is headquartered in Bellevue,
Washington.
ARTEX RISK: Shivkov et al. Sue over Captive Insurance Strategies
----------------------------------------------------------------
A class action lawsuit against Artex Risk Solutions, Inc., et al.
seeks recovery of damages that Plaintiffs and the Class sustained
in connection with their participation in Captive Insurance
Strategies that Defendants designed, developed, promoted, sold,
implemented, and managed, in violations of the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants prepared federal tax
returns in connection with the Captive Insurance Strategies, and
the Defendants and Other Participants advised Plaintiffs and the
Class to sign and file individual federal tax returns using and
reporting the deductions generated by the Captive Insurance
Strategies. Even after the Defendants and Other Participants
learned that the IRS had begun to audit and disallow deductions
claimed through similar tax strategies, the Defendants and other
Participants continued to advise, promote, and encourage Plaintiffs
and the Class to use the Captive Insurance Strategies to offset
income and/or capital gains on their income tax returns.
The case is captioned Dimitri Shivkov, individually and as a
trustee of the Phoenix 2010 Revocable Trust; Vassil Zhivkov;
Kristina Tsonev; Spectra Services, Inc.; DVS Holdings, LLC; Robert
C. Miller; Brenda Mae Miller; Bruce G. Robinson; Sara Van Alstyne
Robinson; Symphony Homes, LLC; Symphony Development Corp.; Keith
Butler; Rebecca M. Butler; Eric K. Wilke; Julie T. Wilke; John
Linder; Nina Linder; Affilion of Cobre Valley, LLC; Affilion of
Huntsville, PLLC; Affilion of Texas PLLC; Taylor-Wilke Holdings,
LLC; Traditions Emergency Medicine, P.A.; Treadstone Equity Group,
LLC; UTA Investments, LLC; Boomerang WB, LLC; AZ Storage 1, LLC; AZ
Storage 2, LLC; Boomerang Sonoran, LLC; RV Storage, LLC; Stone
Haven Lodge, LLC; UTA Holdings, LLC; Wilke Medical Direction, PLLC;
5T Capital Fund II, LLC; 5T Capital Holdings, LLC; 5T Capital LLC;
Ingenuity Auto Leasing, LLC; Ingenuity Aviation, LLC; Ingenuity
Equity Group II, LLC; Ingenuity Equity Group III, LLC; Ingenuity
Equity Group, LLC; Ingenuity Leasing Company II, LLC; Ingenuity
Leasing Company, LLC; Ingenuity Matrix, Inc.; Ingenuity
Professional Services, PLLC; and Bourne Tempe Land, LLC on behalf
of themselves and all others similarly situated; the Plaintiffs,
vs. Artex Risk Solutions, Inc.; TSA Holdings, LLC f/k/a Tribeca
Strategic Advisors, LLC; TBS LLC d/b/a PRS Insurance; Karl Huish;
Jeremy Huish; Jim Tehero; Arthur J. Gallagher & Co.; Debbie Inman,
Epsilon Actuarial Solutions, LLC; Julie A. Ekdom; AmeRisk
Consulting, LLC, and Provincial Insurance, PCC; the Defendants,
Case No. 2:18-cv-04514-GMS (D. Ariz., Dec. 6, 2018).[BN]
Attorneys for Plaintiffs:
Jeffery R. Finley, Esq.
SCHNEIDER WALLACE COTTRELL
KONECKY W OTKYNS LLP
8501 North Scottsdale Road, Suite 270
Scottsdale, AZ 85253
Telephone: (480) 428-0143
Facsimile: (866) 505-8036
E-mail: jfinley@schneiderwallace.com
pvanzanzen@schneiderwallace.com
- and -
David R. Deary, Esq.
W. Ralph Canada, Jr., Esq.
Jim L. Flegle, Esq.
Wilson E. Wray, Esq.
John McKenzie, Esq.
Donna Lee, Esq.
LOEWINSOHN FLEGLE DEARY SIMON LLP
12377 Merit Drive, Suite 900
Dallas, TX 75251
Telephone: (214) 572-1700
Facsimile: (214) 572-1717
ASM USA: Fiorentino et al. Seek Overtime Pay for Brand Ambassadors
------------------------------------------------------------------
ANGELICA FIORENTINO and KIANNA BROWNE, individually and on behalf
of all others similarly situated, the Plaintiffs, vs. ASM USA INC.,
the Defendant, Case No. 525215/2018 (N.Y. Sup. Ct., Dec. 14, 2018),
seeks to recover overtime compensation and other damages for
Plaintiffs and their similarly situated co-workers Brand
Ambassadors, Ecommerce Specialists, and/or Customer Services
Representatives who work or have worked for the Defendant.
'
According to the lawsuit, ASM provides outsourced contact center
services for luxury brands worldwide. To carry out their services,
ASM utilized Brand Ambassadors who are tasked with handling
customer inquiries about a brand's website, products, and/or
policies, delivering luxury-oriented customer service via phone,
email and/or chat, as well as other non-exempt work.
Despite being non-exempt employees, the Defendant has failed to
properly pay the Plaintiff and other Brand Ambassadors overtime
compensation at 1.5 times their regular rate of pay when they work
over 40 hours per week in violation of the Fair Labor Standards Act
and under the New York Labor Law, the lawsuit says.[BN]
Attorneys for Plaintiffs and the Putative Collective:
Brian S. Schaffer, Esq.
Frank J. Mazzaferro, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street, 30th Floor
New York, NY 10005
Telephone: (212)300-0375
Attorneys for Defendant:
Jennifer Berhorst, Esq.
BRYAN CAVE LEIGHTON PAISNER LLP
One Kansas City Place
1200 Main Street, Suite 3800
Kansas City, MO 64105-2122
Telephone (816) 374-3203
ASPEN INSURANCE: Court Approves Proposed Letter in Seeno
--------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order approving Defendant's Proposed Letter in
the case captioned ALBERT D. SEENO CONSTRUCTION COMPANY, et al.,
Plaintiffs, v. ASPEN INSURANCE UK LIMITED, Defendant. Case No.
17-cv-03765-SI. (N.D. Cal.).
This order resolves a pending dispute regarding the plaintiffs'
discovery seeking information and documents about other
policyholders who have policies containing provisions that are
identical or substantially similar to two Self Insured Retention
provisions contained in plaintiffs' insurance policies.
In the parties' initial letter brief regarding this dispute, the
plaintiffs stated that this discovery was relevant to their claim
for bad faith. In addition, the plaintiffs stated that they needed
this discovery to establish whether there are similarly situated
policyholders to determine whether the plaintiffs can satisfy the
requirements of a representative action under California Business
and Professions Code section 17200.
The Court concludes that the plaintiffs are entitled to the
discovery sought, with certain limitations. The Court agrees with
the plaintiffs that the discovery is relevant to the plaintiffs'
claim for bad faith and punitive damages. Further, information
about other policyholders will allow the plaintiffs to determine if
they wish to seek class certification. The Court is not persuaded
by the defendant's argument that the plaintiffs have not shown a
need for the discovery because the plaintiffs have not actually
been injured under the policies, as that question goes to the heart
of the plaintiffs' claims and cannot be decided on the present
record. In addition, the defendant has not substantiated its
assertion that production of discovery regarding similarly situated
policyholders is burdensome or oppressive.
However, the Court agrees with the defendant that the plaintiffs'
requests for information about policies containing language
substantially similar to the plaintiffs' policies is too vague, and
thus the defendant need only produce discovery regarding other
policies containing language identical to the Self Insured
Retention provisions at issue here.
Accordingly, the Court approves the defendant's proposed letter and
will permit the defendant to send the letter.
A full-text copy of the District Court's November 29, 2018 Order is
available at https://tinyurl.com/y72zq2y3 from Leagle.com.
Albert D. Seeno Construction Company, Albert D. Seeno Construction
Co., Inc., Discovery Builders, Inc., West Coast Home Builders,
Inc., Black Diamond Land Investors, LLC, Seecon Financial and
Construction Co., Inc., North Village Development, Inc. & Sanctuary
North Village, LLC, Plaintiffs, represented by Robert Lee
Sallander, Jr. -- rsallander@gpsllp.com -- Greenan Peffer Sallander
& Lally LLP & Robert Glenn Seeds -- rseeds@gpsllp.com -- Greenan,
Peffer, Sallander & Lally, LLP Attorneys At Law.
Aspen Insurance UK Limited, Defendant, represented by Aaron Jeremy
Susman -- aaron.sussman@clydeco.us -- CLYDE & CO US LLP, Maria
Louise Cousineau -- mcousineau@cozen.com -- Cozen O'Connor & James
P. Koelzer -- james.koelzer@clydeco.us -- CLYDE & CO US LLP.
Aspen Insurance UK Limited, Counter-claimant, represented by Aaron
Jeremy Susman , CLYDE & CO US LLP, Maria Louise Cousineau , Cozen
O'Connor & James P. Koelzer , CLYDE & CO US LLP.
AT&S AMERICAS: Piper Suit Moved to Northern District of Illinois
----------------------------------------------------------------
A case, Catherine Piper individually and on behalf of all similarly
situated individuals, the Plaintiff, vs. AT&S Americas, LLC, the
Defendant, Case No. 2018 CH 12799, was removed from the Circuit
Court of Cook County, to the U.S. District Court for the Northern
District of Illinois (Chicago) on Dec. 7, 2018. The Northern
District of Illinois assigned Case No. 1:18-cv-08046 to the
proceeding. The suit alleges job-related violation with a demand of
$250,000. The case is assigned to the Hon. Elaine E. Bucklo.
AT&S has become technology leader in the PCB industry: Core
businesses are Mobile Devices, Automotive, Industrial, Medical,
Aviation and Advanced.[BN]
Attorneys for Plaintiff:
John Michael Liston, Esq.
HR LAW COUNSEL
333 West Wacker Drive, Suite 500
Chicago, IL 60606
Telephone: (847) 528-5024
E-mail: listonjm@gmail.com
Attorneys for Defendant:
Arthur James Rooney, Esq.
BAKER & MCKENZIE LLP
300 East Randolph Street, Suite 5000
Chicago, IL 60601-6342
Telephone: (312) 861-2838
E-mail: arthur.rooney@bakermckenzie.com
- and -
Melissa Anne Logan, Esq.
BAKER & MCKENZIE LLP
300 E. Randolph St., Ste. 5000
Chicago, IL 60605
Telephone: (312) 861-8221
E-mail: melissa.logan@bakermckenzie.com
AUROBINDO PHARMA: Faces Class Action Over Blood Pressure Drug
-------------------------------------------------------------
Reuters, citing Business Standard, reports that Aurobindo Pharma
Ltd faces a class action lawsuit in the U.S. over carcinogenic
elements in its blood pressure drug.
The drugmaker has been named in the lawsuit for alleged
contamination of its irbesartan active ingredient (API) used in
treatment of high blood pressure, the report added.
The company did not immediately respond to Reuters' request for a
comment. [GN]
AWP INC: Kasiotis Sues Over Unpaid Earned Wages
-----------------------------------------------
Jack Kasiotis, Delano Anglin, and Shantel Ransome, on behalf of
themselves and others similarly situated, Plaintiffs, v. AWP, Inc.,
d/b/a Area Wide Protective, Defendant, Case No. 1:18-cv-11825 (S.D.
N.Y., December 17, 2018) is a collective action instituted by
Plaintiffs as a result of Defendant's practices and policies of not
paying its traffic control specialists, including Plaintiffs, for
all hours worked, resulting in unpaid earned wages including
overtime compensation at the rate of one and one-half times their
regular rates of pay for all of the hours they worked over 40 each
workweek, in violation of the Fair Labor Standards Act.
Plaintiffs and others similarly-situated were employed by Defendant
as traffic control specialists. Plaintiffs were employed by
Defendant within the last three years, and worked more than 40
hours in workweeks during all times relevant to this complaint.
Defendant paid Plaintiffs and others similarly-situated only for
worked performed from the time they arrived and left a worksite.
Plaintiffs and others similarly-situated performed compensable work
that was not paid by Defendant and remains unpaid. Plaintiffs and
others similarly-situated performed this unpaid compensable work
before arriving to and after leaving from their respective
worksites, says the complaint.
Plaintiff Kasiotis is a citizen of the United States, a resident of
Sullivan County, New York, and performed work for Defendant in New
York.
Plaintiff Anglin is a citizen of the United States, a resident of
St. Joseph County, Indiana, and performed work for Defendant in
Indiana.
Plaintiff Shantel Ransome is a citizen of the United States, a
resident of Dauphin County, Pennsylvania, and performed work for
Defendant in Pennsylvania.
Defendant is a for-profit corporation, registered to do business in
New York .[BN]
The Plaintiffs are represented by:
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
Nilges Draher LLC
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Phone: (330) 470-4428
Facsimile: (330) 754-1430
Email: hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
- and -
Robi J. Baishnab, Esq.
Nilges Draher LLC
34 N. High St., Ste. 502
Columbus, OH 43215
Phone: (614) 824-5770
Facsimile: (330) 754-1430
Email: rbaishnab@ohlaborlaw.com
BANK OF AMERICA: $126.3K Attorney's Fees Awarded in Antitrust Suit
-------------------------------------------------------------------
The United States District Court for the Southern District of New
York issued a Memorandum Opinion and Order granting Lead Counsel's
Motion for Attorney's Fees in the long-running and complex
antitrust class action styled ALASKA ELECTRICAL PENSION FUND et
al., Plaintiffs, v. BANK OF AMERICA CORPORATION et al., Defendants,
No. 14-CV-7126 (JMF)(S.D.N.Y.).
Lead counsel for the class move for attorneys' fees in the amount
of $143,782,500, or 28.5% of the gross settlement fund; expenses;
and incentive awards for the named Plaintiffs.
In this case, the Court previously granted final approval to
settlements against all fifteen Defendants, including fourteen of
the world's largest banks, totaling $504.5 million.
In assessing what constitutes a reasonable fee, courts typically
consider the Goldberger factors, which include (1) the time and
labor expended by counsel (2) the magnitude and complexities of the
litigation; (3) the risk of the litigation (4) the quality of
representation (5) the requested fee in relation to the settlement;
and (6) public policy considerations. Wal-Mart Stores, 396 F.3d at
121 (citing Goldberger, 209 F.3d at 50).
Many of those factors support a finding that the fee requested here
is reasonable. First, counsel devoted almost four years and over
158,000 billable hours to the prosecution of this case. Second,
the magnitude and complexity of the litigation cannot be
overstated; the case was one of the most complicated if not the
most complicated that this Court has handled, in terms of both the
underlying subject matter, the manipulation of abstruse benchmark
rates for complex financial instruments and the novel legal issues
amenability to class treatment and modeling damages, to name but
two) raised by the Plaintiffs' claims. Third, as the Court noted in
approving the settlements, the risk involved which must be measured
as of when the case is filed, was considerable and exacerbated by
the complexity of the sophisticated financial instruments involved
in this case, the nature and size of the derivatives market, and
the number and resources of the defendants.
Fourth, the quality of representation, best measured by results,
was exceptional, as counsel obtained over half a billion dollars
for the class by counsel's calculation, between 35% and 73% of
their expected trial demand. And last, public policy favors
rewarding the successful prosecution of antitrust claims.
The size of the requested fee in relation to the settlement,
however, gives the Court pause. As a threshold matter, the Court is
reluctant even to begin its analysis with lead counsel's proposed
figure, as it is well established that an initial numerical
reference, whether or not it is reasonable, can have an "anchoring"
effect on a person's subsequent judgments.
Instead, to determine what an appropriate range of fees in relation
to this settlement might be, the Court begins not with lead
counsel's proposal, but by assessing the percentages awarded to
class counsel in comparable cases in this market. Lead counsel
identify forty antitrust cases between 2004 and 2018 in which the
class recovered more than $100 million. That list does not include
another megafund antitrust action with claims much like those here,
involving alleged manipulations of benchmark rates in which fees
were recently awarded.
Those numbers accord with empirical data including data from a
study conducted by lead counsel's own expert, Professor Brian
Fitzpatrick demonstrating that, as class action settlements grow in
size, the percentage awarded to class counsel in fees drops
significantly below the going rate for contingency-fee work in the
private market. Most significant for this Court's purposes, the
Second Circuit itself has endorsed a sliding-scale approach, noting
that, in cases with larger settlements, courts have traditionally
awarded fees in the lower range of what is reasonable because
economies of scale could cause windfalls.
It is true that lead counsel point to cases, some of which involved
antitrust claims) in which a reviewing court found a fee of 30% or
more to be reasonable. But the sheer volume of federal court class
action settlements means that isolated string cites to cases in
which class counsel received a higher percentage of the settlement
are not particularly meaningful. Equally unavailing is lead
counsel's claim that, for antitrust class action funds between $500
million and $1 billion, the average fee percentage is 28.82%. That
figure is based on only six cases, none of which was from this
Circuit. Instead, given the fee awards in the cases cited by lead
counsel; the subset of those cases arising in the Second Circuit;
the scholarly consensus about declining awards in larger cases; and
the Second Circuit's imprimatur on awarding lower fees in large
cases, the Court concludes that a reasonable fee in this case would
fall somewhere between 15% and 25% of the settlement fund.
In light of the Goldberger factors that weigh in favor of a
substantial fee award, discussed above, the Court exercises its
very broad discretion, to conclude that a fee award at the high end
of that range is appropriate here. In fact, given the extraordinary
complexity of this case and the sheer amount of work that counsel
did in obtaining substantial relief on behalf of the class, the
Court concludes that a fee award of 26% just above the range would
be reasonable. Exercising its conceded discretion, however, the
Court concludes that counsel's fees should be calculated as a
percentage of the fund after deduction of expenses.
Accordingly, Lead counsel's motion for fees, expenses, and
incentive awards is granted as modified.
A full-text copy of the District Court's November 29, 2018
Memorandum Opinion and Order is available at
https://tinyurl.com/yblhmlzd from Leagle.com.
Alaska Electrical Pension Fund, on behalf of itself and all others
similarly situated, Plaintiff, represented by Christopher M. Burke
-- cburke@scott-scott.com -- Scott+Scott Attorneys at Law LLP,
Daniel Lawrence Brockett -- danbrockett@quinnemanuel.com -- Quinn
Emanuel, Daniel Paul Cunningham --
danielcunningham@quinnemanuel.com -- Quinn Emanuel, David W.
Mitchell -- davidm@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP,
pro hac vice, Marc Laurence Greenwald --
marcgreenwald@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan
LLP, Patrick Joseph Coughlin -- patc@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP, Stanley D. Bernstein -- Bernstein@bernlieb.com
-- Bernstein Liebhard, LLP, Steig Olson --
steigolson@quinnemanuel.com -- Quinn Emanuel, Sylvia Sokol --
SSOKOL@SCOTT-SCOTT.COM -- Scott + Scott, L.L.P.
Bank Of America Corporation, Defendant, represented by Adam Selim
Hakki -- ahakki@shearman.com -- Shearman & Sterling LLP & Richard
Franklin Schwed -- rschwed@shearman.com -- Shearman & Sterling
LLP.
The Goldman Sachs Group, Inc., Defendant, represented by Elizabeth
Vicens -- evicens@cgsh.com -- Cleary Gottlieb, George S. Cary --
gcary@cgsh.com -- Cleary Gottlieb Steen & Hamilton LLP, pro hac
vice, Leah Brannon -- lbrannon@cgsh.com -- Cleary Gottlieb Steen &
Hamilton LLP, pro hac vice & Thomas J. Moloney -- tmoloney@cgsh.com
-- Cleary Gottlieb.
BAYLOR SCOTT: CC and LC Suit Alleges ERISA Violation
----------------------------------------------------
C.C. and L.C., individually and as next friend to L.L.C.; D.C. and
H.C., individually and as next friend to O.C.; C.S., individually
and as next friend to J.A., Jr.; and S.M. and C.S, individually and
as next friend to E.M., on behalf of a putative class of similarly
situated employees v. Baylor Scott & White Health; Baylor Scott &
White Health and Welfare Benefits Plan; Scott & White Health Plan;
and Baylor Scott & White Holdings, Case No. 4:18-cv-00828 (E.D.
Tex., November 21, 2018), is brought against the Defendants for
violations of the Employee Retirement Income Security Act.
Upon information and belief, BSW doctors and specialists, employed
by BSW and its affiliated and/or network providers, diagnose
children with autism spectrum disorder and prescribe Applied
Behavioral Analysis therapy without any limitation to treat ASD.
Upon further information and belief: a) said doctors and
specialists do not limit their ABA recommendations to only 60
sessions over a child's lifetime because this service is provided
intensely, sometimes for many years; and b) and up until BSW's
recent decision to impose a 60-visit lifetime limit on ABA therapy
for its own plan participants/beneficiaries, almost every child who
received ABA therapy insured or covered under a BSW-related health
plan, received benefits for ABA service well in excess of 60 visits
for life.
Yet for its own employees, BSW's self-funded health plan, the
Baylor Scott & White Health and Welfare Benefits Plan, relies on
Summary Plan Descriptions that prematurely cut short ABA therapy
services, and attempts to limit the therapy to treat ASD, which is
a mental health condition, to 60 visits for life.
The Plaintiffs C.C. and L.C. were recent residents of Temple,
Texas. C.C. was a resident physician in the Family Medicine
Residency Program at Baylor Scott & White Medical Center - Temple.
He recently left Baylor Scott & White Medical Center - Temple,
moving with his family to Virginia. This family has a child,
L.L.C., who was born on September 25, 2011, and is diagnosed with
ASD. They were plan participants and/or plan beneficiaries under
the BSW Plan, which is subject to the ERISA and MHPAEA.
The Plaintiffs D.C. and H.C. are residents of Garland, Texas. D.C.
is an employee of BSW. This family has a child, O.C., who was born
on July 12, 2014, and is diagnosed with ASD. They are plan
participants and/or plan beneficiaries who receive health insurance
benefits under the BSW Plan.
The Plaintiff C.S. and her son J.A., Jr. reside in Harker Heights,
Texas. C.S. is an employee of BSW. J.A., Jr. was born on August 31,
2010 and has been diagnosed with ASD. She and J.A., Jr. are plan
participants and/or plan beneficiaries who receive health insurance
benefits under the BSW Plan.
The Plaintiffs S.M. and C.S. are residents of Plano, Texas. S.M is
an employee of BSW. This family has a child, E.M., who was born on
October 12, 2004, and is diagnosed with ASD. They are plan
participants and/or plan beneficiaries who receive health insurance
benefits under the BSW Plan.
The Defendant Baylor Scott & White Health is the largest
not-for-profit healthcare system in Texas, which has over 47,000
employees in Texas. Upon information and belief, its principal
place of business is Dallas, Texas, and its facilities include
approximately 48 hospitals and more than 900 patient care sites
throughout Texas, including in Sherman, Texas.
The Defendant Baylor Scott & White Health and Welfare Benefits Plan
is a self-funded plan, governed by ERISA and the MHPAEA. Upon
information and belief, its principal place of business is Temple,
Texas. [BN]
The Plaintiffs are represented by:
Austin H. England, Esq.
THE HARRIS FIRM, P.C.
5050 West Lovers Lane
Dallas, TX 75240
Tel: (214) 956-7474
Fax: (214) 956-7405
- and -
Jodi F. Bouer, Esq.
BOUER LAW LLC
55 Phillips Avenue
Lawrenceville, NJ 08648
Tel: (609) 924-3990
Fax: (609) 228-6750
E-mail: jbouer@bouerlaw.com
BLUECROSS BLUESHIELD: Tenn. App. Affirms Class Certification Denial
-------------------------------------------------------------------
The Court of Appeals of Tennessee, at Jackson, issued an Opinion
affirming the judgement of the District Court denying Plaintiffs'
Motion for Class Certification in the case captioned EMERGENCY
MEDICAL CARE FACILITIES P.C., v. BLUECROSS BLUESHIELD OF TENNESSEE
INC. ET AL. No. W2017-02211-COA-R3-CV. (Tenn. App).
This interlocutory appeal pursuant to Tennessee Code Annotated
section 27-1-125 follows the trial court's denial of a motion for
class action certification.
The proposed class consists of various physicians and health care
professionals who are participating providers in the Defendants'
insurance networks and who provide medical services in the
emergency departments of hospitals. The central contention is that
the class members' contracts with the Defendants were breached when
the fee for certain services was capped at a $50.00 rate.
The trial court ultimately concluded that certification of the
class was improper and held, among other things, that the plaintiff
had not demonstrated that common issues in the case predominated
over individual ones.
Emergency Medical Care Facilities (EMCF) presents several issues on
appeal, all of which relate to the denial of its motion for class
certification. In addition to contending that it has a class-wide
method of calculating damages, EMCF generally asserts that the
trial court erred in its analysis regarding predominance and
superiority.
Predominance
In order to satisfy Rule 23.02(3), the trial court must, in part,
find that the question of law or fact common to the members of the
class predominate over any questions affecting only individual
members.
In asserting its breach of contract claim in the amended complaint,
EMCF contended that its contract with Defendants had been breached
when certain services were capped at a flat rate of $50.00.
According to EMCF, these $50.00 payments did not comport with the
compensation owed as a part of the parties' contractual
obligations. The issue of the $50.00 payments also served as an
alleged basis for class action relief, as EMCF posited as a common
question whether the proposed class members' contracts were
breached when those members were reimbursed at a flat rate of
$50.00 per service.
In this case, there does not appear to be any dispute that there
are contractual provisions stating that compensation for services
shall be at the lessor of the applicable fee schedules or billed
charges. Of course, these provisions notwithstanding, there is a
dispute as to whether compensation should always be in accordance
with such terms. Defendants maintain that they are contractually
permitted, via incorporation of state law, to cap non-emergency
services at $50.00. Thus, as we understand it, under the
Defendants' view of their contractual obligations, a $50.00 cap
could be applied irrespective of what payment would be owed to EMCF
and other proposed class members under the general fee schedules if
a change in state law requiring such a cap for non-emergency
services in the emergency room was incorporated into the parties'
contract. Moreover, it is clear to us that some claims of the
proposed class were potentially subject to a $50.00 cap regardless
of the existence of a state law providing for same.
In holding that this case was not proper for class action
treatment, the trial court found that a number of facts precluded a
predominance of common issues. First, the trial court broached the
question concerning the existence of a law providing for the
disputed $50.00 cap, albeit in a somewhat roundabout way. Rather
than directly making a preliminary inquiry into the question of
whether a $50.00 cap provision was contractually incorporated due
to a change in state law, the trial court essentially assumed such
a provision was operative, tying this understanding to an apparent
concession made by EMCF. Because the trial court found that EMCF
had essentially conceded that the application of a $50.00 cap was
within the Defendants' rights, the trial court reasoned that
individualized proof would be necessary to establish a contractual
breach.
In pertinent part, the trial court's order noted that EMCF had
acknowledged that the reduction in payments was a requirement of
state law. Moreover, the trial court's order stated that the
federal district court judge had recognized that EMCF did not
contest BCBST's right to pay the challenged $50 flat fee for
non-emergency services. According to the trial court, therefore,
proof of nonperformance and of damages as an element of liability
would require individualized consideration of the claims of all 275
putative class members.
Although EMCF takes umbrage at the trial court's findings regarding
predominance, the Court finds no error with the trial court's
ultimate conclusion. Without a doubt, there is a common thread
among the claims of the proposed class inasmuch as it is alleged
that each of the submitted claims regarding alleged emergency
medical services provided by class members in hospital emergency
rooms was reimbursed at the $50.00 cap.
This commonality aside, it is clear that not all claims are
governed by the same contractual provisions. Indeed, although the
record suggests that form agreements are used for all of the
Defendants' network providers who treat TennCare and TennCare
Select patients, the record also reveals that the particular claims
at issue in this case are not subject to the same contractual terms
on a classwide basis.
First, even though both the TennCare and TennCare Select programs
are similar from the standpoint that they generally tie
compensation to the lessor of applicable fee schedules or billed
charges, the trial court correctly observed that the TennCare
Select Amendment implicates different legal issues for TennCare
Select providers inasmuch as the State also reserves the right to
set compensation.
Moreover, even if we assume that EMCF is correct in its position
that no state law was ever passed regarding the $50.00 cap, thus
allowing it to prove the general invalidity of applying a cap to
certain TennCare claims, other TennCare claims must be judged by
different contractual standards. Indeed, as we have previously
noted, there is no dispute that the BlueCare Provider
Administration Manual is an incorporated part of the parties'
contractual obligations, and in June 2012, the manual was amended
to reflect the existence of the $50.00 cap.
The record further reflects that numerous providers entered into
contracts in the Defendants' networks after the amendment of the
manual, which specifically provided that Emergency Department (ED)
Non-Emergency Professional fees are based on contracted rate with
reimbursement not to exceed $50.00. Although EMCF may insist that
no state law ever provided for a $50.00 cap, a $50.00 cap provision
was nevertheless clearly an operative contractual term applicable
to many of the potential class members and/or claims at issue in
this case after the amendment of the manual.
In Tenn. App.'s view, the above fact is not without significant
consequences. In its appellate briefing, EMCF has suggested that
differences regarding individual claims might be managed through
the use of subclasses. For instance, in its reply brief, EMCF
argues that, were the court to accept that TennCare Select claims
were significantly different from BlueCare claims, it is within the
court's discretion to create subclasses to aid in case management.
Respectfully, having carefully reflected on the issue, we are of
the opinion that subclassing could not permissibly be the salve
EMCF might desire it to be. Although Rule 23 does provide that a
class may be divided into subclasses, it is clear that "each
subclass must independently satisfy the requisite certification
requirements."
In this case, there is inevitably a barrier to such a conclusion.
Even if there is a subset of claims for which there is no operative
contractual cap provision,5 thus allowing for proof that the
application of such a cap would have been equally invalid as to any
of those claims, other claims clearly were subject to a potential
$50.00 cap as explained previously. Indeed, as the Court have
noted, many providers entered into contracts after the BlueCare
Provider Administration Manual was amended, and the manual, which
is an incorporated part of the parties' contractual obligations,
had been amended to reflect the existence and potential application
of the $50.00 cap. As to these later claims for which Emergency
Department (ED) Non-Emergency Professional fees are based on
contracted rate with reimbursement not to exceed $50.00, the
invalidity of a $50.00 capped payment in a given case would be
dependent on whether or not a factual predicate existed for the
capped payment. In other words, under that specific contractual
universe, did the submitted claim in fact involve a non-emergency
so as to permit the cap, or did it involve an emergency to which
the cap does not apply?
Having to answer these types of questions would invite a level of
individualized consideration that is not amenable to class action
proceedings. Therefore, even if subclasses were created to
differentiate the class along lines of the varying contractual
standards that governed given claims,6 it is clear to us that the
proof required to prove a breach with respect to the claims
governed under the amended manual would be individualized. This,
therefore, signifies that common issues do not predominate
regarding such claims.
On appeal, EMCF argues vehemently against the notion that an
individualized consideration of liability would ever be potentially
necessary in this case. In its reply brief, for instance, EMCF
argues that the Defendants performed the only individual analysis
that will ever be necessary by processing the claims at issue. EMCF
notes that by processing the subject claims, the Defendants already
established that the claims were for covered, medically necessary
services. The Court agrees with the Defendants that EMCF's argument
on this point is fallacious. Just because a claim was processed and
thus determined to be for a covered and medically necessary
service, that does not establish that the claim necessarily
involved an emergency.
The Court agrees with the Defendants that such a link is absent, at
least as gleaned from the record before the Court. Indeed, Dr.
Robert Turner, who is President of EMCF, stated in his deposition
that some who present in the emergency room are not suffering from
a medical emergency but that services are all billed the same. He
also indicated that in order to determine and investigate whether a
particular patient had a medical emergency, one would need to go
back and look at the individual patient's medical record to do
that. Despite EMCF's emphasis on the fact that all claims have been
processed, the Court fails to see how this fact necessarily
demonstrates the character of the claims, i.e., whether or not they
involved an emergency. Therefore, given that some claims are
subject to contractual terms that allow for a $50.00 cap to attach
to non-emergencies, there is the anticipated prospect that the
process necessary to resolve these claims will degenerate into
multiple separate individualized inquiries.
In summary, given the different contractual terms governing the
claims of the proposed class (whether it be the different terms
relating to TennCare Select claims or the potential differences
relating to certain TennCare claims), the fact that the claims of
one subset of the class would necessarily require individualized
proof to establish liability, and the presence of questions of
waiver that are apt to require individualized hearings, we hold
that the trial court did not err in finding that the predominance
requirement was not established in this case. It therefore follows
that the refusal to certify the proposed class was appropriate.
Superiority
EMCF argues that the trial court abused its discretion by finding
that a class action proceeding is not a superior mechanism to
resolve this dispute. According to EMCF, the trial court departed
from controlling legal standards in its consideration of
superiority and turned to a list of concerns plucked seemingly out
of thin air.
The Court need not inquire into this matter given our foregoing
discussion on predominance, as certification under Rule 23.02(3)
requires the establishment of both predominance and superiority.
Tenn. R. Civ. P. 23.02(3), providing for the maintenance of a class
action if the court finds that the question of law or fact common
to the members of the class predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for the fair and efficient
adjudication of the controversy. Given that predominance is not
met, the trial court's order denying certification should be
affirmed. EMCF's concerns about the trial court's superiority
analysis are therefore pretermitted.
The trial court's order denying class certification of the proposed
class is affirmed.
A full-text copy of the Tenn. App.'s November 29, 2018 Opinion is
available at https://tinyurl.com/yd3jnu3w from Leagle.com.
L. Gino Marchetti, Jr. -- gmarchetti@tpmblaw.com -- and Keith W.
Blair -- kblair@kblairlaw.com -- Nashville, Tennessee, and Seth A.
Goldberg -- SAGoldberg@duanemorris.com -- and Joseph J. Pangaro --
jjpangaro@duanemorris.com -- Philadelphia, Pennsylvania, for the
appellant, Emergency Medical Care Facilities, PC.
Gary C. Shockley and Caldwell G. Collins, and Charles H. Barnett,
III, for the appellees, BlueCross BlueShield of Tennessee, Inc.,
and Volunteer State Health Plan, Inc.
BOCCA BLISS 725: Fails to Pay Proper Wages, Cuahutle et al. Say
---------------------------------------------------------------
RAFAEL CUAHUTLE DE GABRIEL; and JAVIER CALLEJA GARCIA, individually
and on behalf of all others similarly situated, Plaintiffs v. BOCCA
BLISS 725 THIRD AVENUE CORP. D/B/A BOCCA BLISS; SARA KITCHEN, CORP.
D/B/A BOCCA BLISS; CPG RESTAURANT GROUP, INC. D/B/A BOCCA BLISS;
ABRAHAM CHOI; BYUNG J. CHO; CARL GENOVA; and ELIO DOE, Defendants,
Case No. 1:18-cv-10686 (S.D.N.Y., Nov. 15, 2018) seeks to recover
from the Defendants unpaid overtime compensation, interest,
liquidated damages, reasonable attorneys' fees, and costs under the
Fair Labor Standards Act.
The Plaintiff Cuahutle was employed by the Defendants as cook
helper. The Plaintiff Calleja was employed as kitchen helper.
Bocca Bliss 725 Third Avenue Corp. d/b/a Bocca Bliss is a
corporation organized and existing under the laws of the State of
New York. The company is engaged in the restaurant business. [BN]
The Plaintiffs are represented by:
MICHAEL FAILLACE & ASSOCIATES, P.C.
Michael Faillace, Esq.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
BOJANGLES' INC: Crowley Balks at Merger Deal with Durational
------------------------------------------------------------
KEN CROWLEY, Individually and on Behalf of All Others Similarly
Situated, the Plaintiff, vs. BOJANGLES', INC., WILLIAM A. KUSSELL,
STEVEN J. COLLINS, JOHN E. CURRIE, CHRISTOPHER J. DOUBRAVA, TOMMY
L. HADDOCK, ROBERT F. HULL, JR., STARLETTE JOHNSON, JAMES R.
KIBLER, MARK A. ROWAN, and STEVEN M. TADLER, the Defendants, Case
No. 1:18-cv-01993-UNA (D. Del., Dec. 14, 2018), seeks to enjoin
vote on a proposed transaction, pursuant to which Bojangles' will
be acquired by Durational Capital Management LP ("Durational") and
The Jordan Company, L.P. through their affiliate Walker Parent,
Inc. and Walker's wholly owned subsidiary Walker Merger Sub, Inc.
The case is a stockholder class action brought by Plaintiff on
behalf of himself and all other public stockholders of Bojangles',
Inc. against Bojangles' and the members of Bojangles' Board of
Directors for their violations of Sections 14(a) and 20(a) of the
Securities Exchange Act of 1934 and U.S. Securities and Exchange
Commission.
According to the complaint, on November 11, 2018, Bojangles' issued
a press release announcing it had entered into an Agreement and
Plan of Merger dated November 9, 2018 to sell Bojangles' to
Durational and TJC. Under the terms of the Merger Agreement, each
Bojangles' stockholder will receive $16.10 in cash for each share
of Bojangles' common stock they own. On December 10, 2018,
Bojangles' filed a Definitive Proxy Statement on Schedule 14A with
the SEC. The Proxy Statement, which recommends that Bojangles'
stockholders vote in favor of the Proposed Transaction, omits or
misrepresents material information concerning, among other things:
(i) Bojangles' financial projections, relied upon by the Company's
financial advisors, Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Houlihan Lokey Capital, Inc., in their financial
analyses; (ii) the data and inputs underlying the financial
valuation analyses that support the fairness opinions provided by
BofA Merrill Lynch and Houlihan Lokey; (iii) the background process
leading to the Proposed Transaction; and (iv) potential conflicts
of interest faced by BofA Merrill Lynch and Company insiders.
The failure to adequately disclose such material information
constitutes a violation of Sections 14(a) and 20(a) of the Exchange
Act as Bojangles' stockholders need such information in order to
make a fully informed decision whether to vote in favor of the
Proposed Transaction or seek appraisal.In short, unless remedied,
Bojangles' public stockholders will be forced to make a voting or
appraisal decision on the Proposed Transaction without full
disclosure of all material information concerning the Proposed
Transaction being provided to them, the lawsuit says.
Bojangles' Inc. is a Southeastern United States regional chain of
fast food restaurants, specializing in cajun seasoning, fried
chicken, and buttermilk biscuits. The company was founded in
Charlotte, North Carolina in 1977 by Jack Fulk and Richard
Thomas.[BN]
Attorneys for Plaintiff:
Ryan M. Ernst, Esq.
O'KELLY ERNST & JOYCE, LLC
901 N. Market St., Suite 1000
Wilmington, DE 19801
Telephone: (302) 778-4000
E-mail: rernst@oelegal.com
- and -
Richard A. Acocelli, Esq.
Michael A. Rogovin, Esq.
Kelly K. Moran, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
- and -
Melissa A. Fortunato, Esq.
BRAGAR EAGEL & SQUIRE, P.C.
885 Third Avenue, Suite 3040
New York, NY 10022
Telephone: (212) 308-5858
Facsimile: (212) 486-0462
E-mail: fortunato@bespc.com
BROADCOM INC: Suits over Brocade Acquisition Dismissed
------------------------------------------------------
Broadcom Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on December 21, 2018, for the
fiscal year ended November 4, 2018, that all lawsuits relating to
the acquisition of Brocade Communications Systems, Inc. have been
dismissed and motions withdrawn, thereby concluding all actions
with respect to these lawsuits.
On December 13, 2016, December 15, 2016, December 21, 2016, January
5, 2017 and January 18, 2017, six putative class action complaints
were filed in the United States District Court for the Northern
District of California, or the U.S. Northern District Court,
captioned Steinberg v. Brocade Communications Systems, Inc., et
al., No. 3:16-cv-7081-EMC, Gross v. Brocade Communications Systems,
Inc., et al., No. 3:16-cv-7173-EJD, Jha v. Brocade Communications
Systems, Inc., et al., No. 3:16-cv-7270-HRL, Bragan v. Brocade
Communications Systems, Inc., et al., No. 3:16-cv-7271-JSD, Chuakay
v. Brocade Communications Systems, Inc., et al., No.
3:17-cv-0058-PJH, and Mathew v. Brocade Communications Systems,
Inc., et al., No. 3:16-cv-7271-HSG, respectively.
The Steinberg, Bragan and Mathew complaints named as defendants
Brocade, the members of Brocade's board of directors, Broadcom,
BRCM and Bobcat Merger Sub, Inc.
The Gross, Jha and Chuakay complaints named as defendants Brocade
and the members of Brocade's board of directors.
All of the complaints asserted claims under Sections 14(a) and
20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder.
The complaints alleged, among other things, that the board of
directors of Brocade failed to provide material information and/or
omitted material information from the Preliminary Proxy Statement
filed with the SEC on December 6, 2016 by Brocade.
The complaints sought to enjoin the closing of the transaction
between Brocade and Broadcom, as well as certain other equitable
and declaratory relief and attorneys' fees and costs.
On January 10, 2017, January 27, 2017 and February 15, 2017, the
U.S. Northern District Court granted motions to relate the cases,
all of which were then related to the Steinberg action and before
the Honorable Judge Edward Chen.
On January 11, 2017, Plaintiff Jha filed a motion for a preliminary
injunction, which was subsequently withdrawn on January 18, 2017.
On February 6, 2017, Plaintiff Gross voluntarily dismissed the
Gross action without prejudice, which was ordered by the U.S.
Northern District Court on February 15, 2017.
On April 14, 2017, the U.S. Northern District Court granted the
Motion for Consolidation, Appointment as Lead Plaintiff and
Approval of Lead Plaintiff's Selection of Counsel filed by
Plaintiff Giulio D. Cessario, a plaintiff in the Steinberg action,
which consolidated these actions under the caption In re Brocade
Communications Systems, Inc. Securities Litigation, Case No.
3:16-cv-07081-EMC.
On December 29, 2017, Lead Plaintiff voluntarily dismissed the
consolidated action without prejudice and withdrew as Lead
Plaintiff. On February 16, 2018, Plaintiffs Gross, Chuakay and Jha
filed a joint motion for an award of attorneys' fees.
On March 2, 2018, the defendants filed a joint opposition to the
motion for attorneys’ fees. On May 3, 2018, Plaintiffs Gross,
Chuakay and Jha withdrew their motion for an award of attorneys'
fees.
As of May 6, 2018, all actions have been dismissed and motions
withdrawn, thereby concluding all actions with respect to these
lawsuits.
Broadcom Inc. designs, develops, and supplies a range of
semiconductor devices with a focus on complex digital and mixed
signal complementary metal oxide semiconductor based devices and
analog III-V based products worldwide. The company operates through
four segments: Wired Infrastructure, Wireless Communications,
Enterprise Storage, and Industrial & Other. Broadcom Inc. is based
in San Jose, California.
BROADCOM INC: Suits Related to CA, Inc. Acquisition Dismissed
-------------------------------------------------------------
Broadcom Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on December 21, 2018, for the
fiscal year ended November 4, 2018, that all four lawsuits related
to the acquisition of CA, Inc., have been dismissed.
On November 5, 2018, or the CA Merger Date, company acquired CA,
Inc., or CA, for approximately $18.8 billion in aggregate cash
purchase consideration, in exchange for all shares of CA common
stock issued and outstanding immediately prior to the closing and
assumed $2.25 billion of outstanding unsecured bonds, or the CA
Merger. In addition, the company assumed all unvested CA stock
options, outstanding restricted stock awards, restricted stock
units, or RSUs, and performance stock units held by continuing
employees.
On August 3, 2018, a purported stockholder of CA commenced a
putative class action lawsuit captioned Harvey v. CA, Inc., et al.
against CA, the CA board of directors, Broadcom and Broadcom's
wholly owned subsidiary party to the merger agreement with CA in
the United States District Court for the Southern District of New
York.
On August 9, 2018, another putative class action lawsuit captioned
Vladimir Gusinsky Rev. Trust v. CA, Inc., et al. was filed against
CA and the CA board of directors in the United States District
Court for the District of Delaware, or Delaware District Court.
On August 15, 2018, a third putative class action lawsuit captioned
Jacob Scheiner Retirement Account v. CA, Inc., et al. was filed
against CA and the CA board of directors in the Delaware District
Court.
On August 22, 2018, a fourth putative class action lawsuit
captioned Kenneth Gilley v. CA, Inc., et al. was filed against CA
and the CA board of directors in the Delaware District Court.
The Harvey and Vladimir Gusinsky Rev. Trust complaints alleged
violations of Sections 14(a) and 20(a) of the Exchange Act arising
out of CA's preliminary proxy statement relating to the CA Merger,
filed with the SEC on July 24, 2018.
The Scheiner Retirement Account and Gilley complaints alleged
violations of Sections 14(a) and 20(a) of the Exchange Act and Rule
14a-9 promulgated thereunder arising out of CA's definitive proxy
statement relating to the CA Merger, filed with the SEC on August
10, 2018.
The complaints asserted that the preliminary proxy statement or
definitive proxy statement, as applicable, contain incomplete and
misleading information regarding CA's financial projections and the
financial analysis performed by Qatalyst Partners, CA's financial
advisor, as well as, for the Harvey, Scheiner Retirement Account
and Gilley complaints, the sales process undertaken by CA in
connection with its proposed merger with Broadcom.
Plaintiffs sought to enjoin the defendants from consummating the CA
Merger, or, if the CA Merger is consummated, rescission and/or
damages. The plaintiffs also sought costs and fees.
On September 4, 2018, the parties to each of the four lawsuits
reached an agreement in principle providing for a dismissal of each
of the lawsuits following the CA shareholder vote with respect to
the CA Merger.
In connection with this agreement, CA filed a supplement to the
definitive proxy statement relating to the CA Merger. On September,
24, 2018, all four lawsuits were dismissed.
Broadcom Inc. designs, develops, and supplies a range of
semiconductor devices with a focus on complex digital and mixed
signal complementary metal oxide semiconductor based devices and
analog III-V based products worldwide. The company operates through
four segments: Wired Infrastructure, Wireless Communications,
Enterprise Storage, and Industrial & Other. Broadcom Inc. is based
in San Jose, California.
BROOME COUNTY, NY: Juvenile Solitary Confinement Suit Deal Has OK
-----------------------------------------------------------------
In the case, A.T., a minor, by and through his parent and natural
guardian Shakeema Tillman, and B.C., a minor, by and through Kristi
Cochardo, Plaintiffs, v. DAVID HARDER, Broome County Sheriff, in
his official capacity, MARK SMOLINSKY, Jail Administrator of the
Broome County Correctional Facility, in his official capacity, and
KEVIN MOORE, Deputy Administrator, in his official capacity,
Defendants, Case No. 9:17-CV-817 (N.D. N.Y.), Judge David N. Hurd
of the U.S. District Court for the Northern District of New York
granted the parties' joint motion for final approval of the class
action settlement.
On July 25, 2017, the named Plaintiffs commenced the action on
behalf of themselves and a proposed class of fellow 16- and
17-year-olds at continued risk of enduring some form of solitary
confinement at the Broome County Jail, a facility operated by
Defendants Broome County Sheriff David Harder, Jail Administrator
Mark Smolinsky, and Deputy Jail Administrator Kevin Moore.
The Plaintiffs sought declaratory and injunctive relief to end the
Broome County Defendants' allegedly routine practice of imposing
solitary confinement on juveniles being held at the Jail. They
further alleged that the Defendants denied juveniles in solitary
confinement access to certain educational opportunities and related
special educational support services required by federal law.
In a Memorandum-Decision & Order issued on April 4, 2018, the
Plaintiffs' motions for class certification and for a preliminary
injunction were granted. Thereafter, the parties negotiated an
interim settlement agreement and worked toward a set of final terms
that would provide significant relief to members of the
now-certified class and subclasses.
On July 9, 2018, the parties jointly moved for preliminary approval
of a final class action settlement agreement. The joint motion was
granted on Oct. 16, 2018. At that time, the Court approved the
parties' proposed Notice to the Class of the Settlement Agreement
and directed the Broome County Defendants to distribute the Notice
in accordance with the parties' proposed terms.
The October 16 Order provided an appropriate time period in which
the class members could lodge written objections to the Notice's
terms. The Order also set Dec. 18, 2018 at 1:00 p.m. as the date
and time that a Fairness Hearing would be conducted on the record
in Utica, New York to determine whether final approval of the
Settlement Agreement should be granted.
In anticipation of the Fairness Hearing, the parties jointly moved
for final approval of the class action settlement by submitting a
memorandum of law, a supporting declaration, and a proposed order.
In a separate filing, the parties have also agreed to an award of
fees and costs to the Plaintiffs' counsel in the full amount of
$75,000.
On Dec. 18, 2018, at 1:00 p.m., a Fairness Hearing was conducted on
the record in Utica, New York. At that time, no class members had
lodged any written objections to the Settlement Agreement.
Further, no class member or any other party was heard to object to
the Settlement Agreement either before or during the Fairness
Hearing. Finally, a review of the parties' joint motion papers and
attached submissions confirm that the Settlement Agreement
satisfies the requirements of the Prison Litigation Reform Act.
After considering these facts, the parties' submissions, the
statements on the record, and the factors set forth in Rule 23 of
the Federal Rules of Civil Procedure, Judge Hurd granted the
parties' joint motion for final approval of the class action
settlement.
He finds that the Settlement Agreement is approved as fair,
reasonable, and adequate to the class of all 16- and 17-year-olds
who are now or will be incarcerated at the Broome County
Correctional Facility; to the subclass of all 16- and 17-year-olds
with disabilities, as defined by the Individuals With Disabilities
Education Act, who are now or will be incarcerated at the Broome
County Correctional Facility, and who are in need of special
education and related services; and to the subclass of all 16- and
17-year-olds with psychiatric and/or intellectual disabilities, as
defined by the Americans with Disabilities Act and Section 504 of
the Rehabilitation Act of 1973, who now or will be incarcerated at
the Broome County Correctional Facility, who are at risk of being
placed in disciplinary isolation because of their disability.
The Judge also approved the parties' agreement on fees and costs.
The Clerk of the Court is directed to terminate any pending motions
and close the file.
A full-text copy of the Court's Dec. 18, 2018 Order is available at
https://is.gd/3it5gY from Leagle.com.
A. T., a minor, by and through his parent and natural guardian
Shakeema Tillman & B. C., a minor, by and through Kristi Cochardo,
Plaintiffs, represented by Joshua T. Cotter -- jcotter@lscny.org --
Legal Services of Central New York, George B. Haddad, Legal
Services of Central New York, Inc., Samuel C. Young --
samyoung@lscny.org -- Legal Services of Central New York & Susan M.
Young -- syoung@lscny.org -- Legal Services of Central New York.
Suzanne Galbato, Mediator (Mandatory Program), pro se.
David Harder, Broome County Sheriff, in his official capacity, Mark
Smolinsky, Jail Administrator of the Broome County Correctional
Facility, in his official capacity & Kevin Moore, Deputy
Administrator, in his official capacity, Defendants, represented by
Robert G. Behnke, Broome County Attorney's Office.
BUCKEYE SHAKER: Fails to Pay Proper Wages, Coffey Suit Alleges
--------------------------------------------------------------
BRIAN COFFEY, individually and on behalf of all others similarly
situated, Plaintiff v. BUCKEYE SHAKER SQUARE DEVELOPMENT
CORPORATION; JOHN HOPKINS; GARNELL JAMISON; and KENNETH L. JOHNSON,
Defendants, Case No. 1:18-cv-02675 (N.D., Ohio., Nov. 18, 2018)
seeks to recover from the Defendant unpaid overtime compensation,
interest, liquidated damages, attorneys' fees, and costs under the
Fair Labor Standards Act.
The Plaintiff Coffey was employed by the Defendants as an hourly,
non-exempt employee.
Buckeye Shaker Square Development Corporation is a development
corporations in The City of Cleveland. [BN]
The Plaintiff is represented by:
Scott D. Perlmutter, Esq.
2012 West 25th Street, Suite 716
Cleveland, OH 44113
Telephone: (216) 308-1522
Facsimile: (888) 604-9299
E-mail: scott@tittlelawfirm.com
- and -
Thomas A. Downie, Esq.
46 Chagrin Falls Plaza #104
Chagrin Falls, OH 44022
Telephone: (440) 973-9000
E-mail: tom@chagrinlaw.com
C&I ENGINEERING: Ludlum Seeks to Recover Unpaid Overtime Wages
--------------------------------------------------------------
Audrey Ludlum, individually and for others similarly situated,
Plaintiffs, v. C&I Engineering, LLC, Defendant, Case No.
4:18-cv-05192 (E.D. Wash., December 14, 2018) is a collective and
class action seeking to recover unpaid overtime and other damages.
The Defendant failed to pay Ludlum, and other workers like her,
overtime as required by the Fair Labor Standards Act (FLSA) and the
Revised Code of Washington, (RCW), Washington's Minimum Wage Act
(WMWA), and any relevant regulations and/or rules adopted by the
Washington Director of Labor and Industries, the complaint
asserts.
Instead, C&I pays Ludlum and other workers like her the same hourly
rate for all hours worked, including those in excess of 40 in a
workweek. C&I further failed to pay Ludlum, and other workers like
her, for all rest breaks, meal breaks in violation of Washington
Wage Laws, adds the complaint.
Ludlum was an hourly employee of C&I.
C&I is an engineering firm with headquarters in Louisville,
Kentucky.[BN]
The Plaintiff is represented by:
Nicholas D. Kovarik, Esq.
PISKEL YAHNE KOVARIK, PLLC
522 W. Riverside Ave., Suite 700
Spokane, WA 99201
Phone: 509-321-5930
Facsimile: 509-321-5935
Email: nick@pyklawyers.com
- and -
Michael A. Josephson, Esq.
Andrew Dunlap, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP, LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Phone: 713-352-1100
Facsimile: 713-352-3300
Email: adunlap@mybackwages.com
mjosephson@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Phone: 713-877-8788
Facsimile: 713-877-8065
Email: rburch@brucknerburch.com
CALIFORNIA: Harassed Licensed Cannabis Businesses, Suit Claims
--------------------------------------------------------------
David Goldman, Wild Rivers Transport LLC, and Amanda Wasserman, on
behalf of themselves and all others similarly situated, the
Plaintiffs, vs California Highway Patrol, the Defendant, Case No.
CGC-18-572115 (Cal. Super. Ct., Dec. 14, 2018), is a class action
arising from the California Highway Patrol's ("CHP")
unconstitutional and unlawful actions and policies taken towards
licensed medicinal cannabis business owners. Those actions and
policies also negatively impact medicinal cannabis patients and
California taxpayers. Despite new California law that allows
licensed transporters to transport cannabis legally, CHP has
disrupted the intent, purpose and letter of those new laws by
harassing Licensed Cannabis Businesses by seizing legally
transacted cash proceeds from these operators.
Defendant CHP's policies and practices also include handing
illegally seized funds over to the United States Department of
Homeland Security, thereby forcing CA licensed operators into
complex, costly and often losing federal forfeiture proceedings.
These actions and the policy motivating them violate the Medicinal
and Adult-Use Cannabis Regulation and Safety Act, the Compassionate
Use Act, due process, and as to licensed operators, the right to be
free from unreasonable searches and seizures. Furthermore, the
actions of CHP wasted taxpayer funds by turning these funds over to
DHS, out of reach of the California treasury.
The California Highway Patrol is a law enforcement agency of
California. The CHP has patrol jurisdiction over all California
highways and can act as the state police. They also have
jurisdiction over city roads, and may conduct law enforcement
procedures there.[BN]
Attorneys for Plaintiffs:
Matthew Kumin, Esq.
LAW OFFICES OF MATTHEW KUMIN
1939 Harrison Street, Suite 307
Oakland, CA 94612
Telephone: (415) 655-7494
E-mail: matt@mattkuminlaw .com
- and -
Craig Wasserman, Esq.
12362 Beach Blvd, Suite 15
Stanton, CA 90680-3955
Telephone:(714)799-0543
Facsimile: (714) 799-5504
E-mail: wasslaw@sbcglobal.net
- and -
Marc Wasserman, Esq.
LAW OFFICES OF MARC D. WASSERMAN, INC.
12362 Beach Blvd, Suite 15
Stanton, CA 90680-3955
Telephone: (714) 934-8383
Facsimile: (714) 799-5504
E-mail: thewasslaw@sbcglobal.net
CAMBA, INC: Dockery et al. Seek Prevailing Wages for Services
-------------------------------------------------------------
DARYL DOCKERY, and PAUL TUCKER individually and on behalf of all
other persons similarly situated who were employed by CAMBA, INC.,
and related or affiliated entities, the Plaintiffs, vs. CAMBA,
INC., and any related or affiliated entities, the Defendants, Case
No.: (N.Y. Sup. Ct., Dec. 14, 2018), seeks to recover prevailing
wages and supplemental benefits which the Plaintiffs and members of
the putative class were statutorily and contractually entitled to
receive for work they performed between December 2012 and the
present on various publicly contracted Projects with such
government entities.
The action is brought on behalf of the Plaintiffs and a putative
class of individuals who worked as security guards, building
cleaners and maintainers, cleaners, maintenance workers, and in
other related building services trades for Defendant Camba, Inc.,
and/or entities related to or controlled by Camba, Inc.
According to the complaint, beginning in or about December 2012 and
continuing to the present, Defendants entered into a number of
contracts and/or subcontracts with Government Entities,
specifically including but not limited to the Contracting Agencies,
to provide shelter services for homeless individuals within the
State of New York, which required the furnishing of services such
as security services, building services, and services in other
related trades, at the sites where Defendants maintain homeless
shelters in New York. The contracts to provide Shelter services had
as their primary purpose the benefit of the general public. CAMBA
receives all, or substantially all, of the funding it uses to
provide homeless shelters from governmental agencies and municipal
subdivisions of the State of New York and City of New York.
Pursuant to New York Labor Law, wages to be paid to building
service employees upon public work shall not be less than the
"prevailing rate of wages." The "prevailing rate of wage" is the
rate of wage paid in the locality by virtue of collective
bargaining agreements between bona fide labor organizations and
employers of the private sector, the lawsuit says.
The government entities include government entities as the New York
City Department of Homeless Services; the New York City Department
of Youth and Community Development; the New York City Department of
Health and Mental Hygiene; the New York City Department of Social
Services; the New York City Department of Education; the New York
City Administration for Children’s Services; the New York City
Department of Housing Preservation and Development; and the New
York City Department for the Aging, at facilities such as homeless
shelters, halfway homes, and various related facilities including
but not limited to those facilities located at 1958 Fulton Street
in Brooklyn, NY; 2402 Atlantic Avenue, Brooklyn, NY; 1245 Broadway
Avenue, Brooklyn, NY; 1424 Herkimer Street, Brooklyn, NY; 59-65
Prince Street, Brooklyn, NY; 1402 8th Avenue, Brooklyn, NY; 199
Amboy Street, Brooklyn, NY; 87-02 23rd Avenue, East Elmhurst, NY;
385 McDonald Avenue, Brooklyn, NY; and 94-00 Ditmars Boulevard,
East Elmhurst, NY.
CAMBA, Inc. is a Brooklyn-based nonprofit organization that
provides social services to New Yorkers in need. CAMBA was founded
in 1977 as a merchant association in Flatbush that worked to reduce
crime and beautify the community.[BN]
Attorneys for Plaintiffs and the Putative Class:
Lloyd Ambinder, Esq.
Alanna Sakovits, Esq.
VIRGINIA & AMBINDER, LLP
40 Broad Street, 7th Floor
New York, NY 10004
Telephone: (212) 943-9080
Facsimile: (212) 943-9082
CANADA: Cecil Facer School Students Part of Abuse Class Action
--------------------------------------------------------------
Canadian Press reports that children who attended Cecil Facer
School in Sudbury four decades ago are part of a class action
lawsuit against the provincial government.
The lawsuit arises from alleged sexual and physical abuse at the
province's now-defunct training schools. The suit now has been
certified as a class action.
In the case of Cecil Facer School students, the suit covers the
period from 1971 to April 2, 1984.
The provincial government did not oppose certification of the suit,
launched by Kirk Keeping, a man who alleges he was badly abused at
one of the schools.
"This is an important milestone for the boys and girls from the
training schools," Keeping said in a statement. "We have all lived
with this for years and we are glad this case is moving forward."
The $600-million claim, which has not been proven, takes in 13 of
the facilities on behalf of "all persons who were alive as at Dec.
8, 2015, who resided at any of the training schools between Jan. 1,
1953, and April 2, 1984, during the time periods set out for each
facility," according to the certification order from Superior Court
Justice Danial Newton in Thunder Bay.
Keeping, in his mid-60s, alleges the schools were festering
cesspools of sexual, physical and psychological abuse perpetrated
by unsupervised and unqualified staff on hapless kids.
"The training schools contained a toxic environment in which
degrading and humiliating treatment of children in the Crown's care
was the norm," the claim states. "Physical, sexual and
psychological abuse was rampant, and residents of training schools
were systematically denied their dignity and basic human rights."
Newton set out six questions to be answered at trial. They include
whether Ontario failed to protect the children and youth from
"actionable" mental or physical harm and whether the province is
liable for any harms done them.
Toronto-based lawyer Jonathan Ptak said about 21,000 people are
survivors of the schools.
"We are pleased that the case now has been certified as a class
proceeding, so that we can now litigate this case on the merits,"
Ptak said in a statement.
The certification decision obviates the need for a two-day
hearing.
The reform schools for boys and girls aged eight to 16 operated
between 1931 until they were shut down in 1984. Those sentenced to
the facilities were children found begging, runaways, truants,
those deemed "incorrigible," those convicted of petty offences, or
those who, for various reasons, had inadequate adult supervision.
While the idea was to provide support, correction and vocational
training, the claim alleges the reality was far more sinister —
one of "fear intimidation and brutality."
Staff forced children to beat up on other children or meted out
physical punishment themselves. Youth were thrown into solitary
confinement in shackles, not allowed to go to the washroom, were
forced to scrub floors with toothbrushes or sleep on floors, and
were forced into sexual acts, according to the claim.
Attempting to report the abuse would lead to retaliation, the claim
alleges.
One survivor, Rick Brown, has told The Canadian Press that he
believes a supervisor at the Brookside training school in Cobourg,
Ont., may have beaten one of his young class mates James Forbes to
death in 1963. Police recently said they were looking at opening an
investigation.
The suit seeks $500 million in general damages and another $100
million in punitive damages, alleging the province was negligent,
failed in the expected standard of care, and breached its duty
toward its young charges.
According to a report from former Quebec judge Fred Kaufman in
2002, Ontario reached settlements with survivors of three schools
-- St. Joseph's, St. John's and Grandview -- decades ago. Former
premier Dalton McGuinty formally apologized to some of those
students in 2004.
The new suit seeks to represent those who attended schools in
places such as Oakville, Galt, Lindsay, Port Bolster, Bowmanville,
Simcoe, Hagersville and Guelph. [GN]
CHEETAH MOBILE: Jan. 29 Lead Plaintiff Motion Deadline Set
----------------------------------------------------------
The law firm of Kirby McInerney LLP reminds investors that a class
action lawsuit has been filed in the U.S. District Court for the
Southern District of New York on behalf of all persons or entities
who acquired Cheetah Mobile, Inc. ("Cheetah Mobile") (NYSE: CMCM )
securities between April 26, 2017 and November 27, 2018 (the "Class
Period"). Investors have until January 29, 2019 to apply to the
Court to be appointed as lead plaintiff in the lawsuit.
The lawsuit alleges that (1) Cheetah Mobile's apps had undisclosed
embedded features which tracked when users downloaded new apps; (2)
the Company used this data to inappropriately claim credit for
having caused the downloads; (3) the foregoing features, when
discovered, would foreseeably subject the Company's apps to removal
from the Google Play store; and (4) accordingly, Cheetah Mobile's
Class Period revenues were in part the product of improper conduct
and thus unsustainable.
On November 26, 2018, BuzzFeed News reported that certain Cheetah
apps then available in the Google Play store were exploiting user
permissions as part of an ad fraud scheme. On this news, Cheetah
Mobile shares fell $3.32, or approximately 37%, over the next two
trading days, to close at $5.48 on November 27, 2018.
If you acquired Cheetah Mobile securities, have information, or
would like to learn more about these claims, please contact Thomas
W. Elrod of Kirby McInerney LLP at 212-371-6600, by email at
investigations@kmllp.com, or by filling out this contact form, to
discuss your rights or interests with respect to these matters
without any cost to you.
Kirby McInerney LLP -- http://www.kmllp.com-- is a New York-based
plaintiffs' law firm concentrating in securities, antitrust, and
whistleblower litigation. The firm's efforts on behalf of
shareholders in securities litigation have resulted in recoveries
totaling billions of dollars. [GN]
CHOICES BEHAVIORAL: Kendrick Sues Over Unpaid Compensation
----------------------------------------------------------
Kristin Kendrick, on behalf of herself and all those similarly
situated, Plaintiff, v. Choices Behavioral Health and Wellness, LLC
and Michael Tucker, Defendants, Case No. 2:18-cv-13776-JTM-MBN
(E.D. La., December 14, 2018) seeks unpaid minimum wages, unpaid
overtime wages and liquidated damages owed to them pursuant to the
Fair Labor Standards Act, and an individual claim for unpaid final
wages under Louisiana's Final Wage Payment Act.
Plaintiff worked for Defendants as an unlicensed mental health
counselor and was not paid for all hours worked, thereby depriving
her of the federally mandated minimum wage for each hour worked and
federally mandated overtime for all hours worked in excess of 40
per week.
Plaintiff estimates that there are dozens, if not hundreds, of
members of the FLSA Collective Class who have been affected by
Defendants' improper policies and practices, based upon the number
of current employees of Defendants, the number of work locations
maintained by Defendants, the Defendants' treatment of all of its
unlicensed counselors in the same manner, and the turnover rate of
Defendants' employees in the last three years, says the complaint.
Plaintiff was, and continues to be a resident of Louisiana.
Choices Behavioral Health and Wellness, LLC was, and continues to
be a Louisiana company. This Defendant was, and continues to be,
engaged in business in Orleans Parish, Louisiana.
Michael Tucker is the sole manager/member owner of Choices
Behavioral Health and Wellness, LLC, and was directly involved in
the events giving rise to the claims set forth herein.[BN]
The Plaintiff is represented by:
Jody Forester Jackson, Esq.
Mary Bubbett Jackson, Esq.
JACKSON + JACKSON
201 St. Charles Avenue, Suite 2500
New Orleans, LA 70170
Phone: (504) 599-5953
Fax: (888) 988-6499
Email: jjackson@jackson-law.net
mjackson@jackson-law.net
CIENA CORP: Settlement Reached in Beaver County Fund Suit
---------------------------------------------------------
Ciena Corporation said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on December 21, 2018, for the
fiscal year ended October 31, 2018, that a settlement has been
agreed in the case, Beaver County Employees Retirement Fund, et al.
v. Cyan, Inc. et al.
As a result of the acquisition of Cyan in August 2015, Ciena became
a defendant in a securities class action lawsuit.
On April 1, 2014, the first of two purported stockholder class
action lawsuit was filed in the Superior Court of California,
County of San Francisco, against Cyan, the members of Cyan's board
of directors, Cyan's former Chief Financial Officer, and the
underwriters of Cyan's initial public offering.
The cases were consolidated as Beaver County Employees Retirement
Fund, et al. v. Cyan, Inc. et al., Case No. CGC-14-538355. The
consolidated complaint alleges violations of federal securities
laws on behalf of a purported class consisting of purchasers of
Cyan's common stock pursuant or traceable to the registration
statement and prospectus for Cyan's initial public offering in
April 2013, and seeks unspecified compensatory damages and other
relief.
On May 19, 2015, the proposed class was certified. During the
fourth quarter of fiscal 2018, the parties agreed to the terms of a
settlement of the action, which settlement is subject to notice to
class members and approval by the court.
The terms of the proposed settlement, which include a release and
dismissal of all claims against all defendants without any
liability or wrongdoing attributed to them, are not material to the
Company's financial results.
Ciena said, "There is no assurance that the court will ultimately
approve the settlement."
Ciena Corporation provides hardware, software, and services that
support the transport, switching, aggregation, service delivery,
and management of voice, video, and data traffic on communications
networks worldwide. Ciena Corporation was founded in 1992 and is
headquartered in Hanover, Maryland.
CIGNA CORP: Court Awards $184K Attorney's Fees in Amara ERISA Suit
------------------------------------------------------------------
The United States District Court for the District of Connecticut
issued an Ruling granting Plaintiffs' Motion for Approval of
Attorney's Fees in the class action brought under the Employee
Retirement Income Security Act (ERISA) styled JANICE C. AMARA et
al, individually, and on behalf of others similarly situated,
Plaintiffs, v. CIGNA CORP. and CIGNA PENSION PLAN, Defendants.
Civil No. 3:01-CV-2361 (JBA). (D. Conn.).
The Plaintiffs seek attorneys' fees based on the percentage of the
fund or the lodestar method in class actions that produce common
fund recoveries.
In applying the percentage of the fund method, it is appropriate to
award attorneys' fees as a percentage of the total funds made
available not on the basis of claims made against the fund.
Under Goldberger v. Integrated Resources, 209 F.3d 43, 47 (2d Cir.
2000), the traditional criteria in determining a reasonable common
fund fee, include: (1) the time and labor expended by counsel (2)
the magnitude and complexities of the litigation (3) the risk of
the litigation; (4) the quality of representation; (5) the
requested fee in relation to the settlement; and (6) public policy
considerations.
All of the relevant Goldberger factors weigh in favor of the
requested 17.5% fee award. With respect to the first and fourth
factors, Plaintiffs' counsel have vigorously litigated this case
for seventeen years before the district court, the Second Circuit,
and the Supreme Court, expending over 12,000 hours. With respect to
the second factor, the case raised novel questions of law and
directly affected tens of thousands of class members.
The third Goldberger factor here is inapplicable as it relates to
settled claims. With respect to the fifth factor, the requested fee
here is reasonable in relation to the value of the total monetary
recovery and in line with or below earlier fee awards.
Class counsel's requested fee award of 17.5% of the increased
benefits is lower than percentage awards in other ERISA class
actions in this Circuit.
When a percentage of the fund method is used, a lodestar
cross-check based on a summary of hours tests the reasonableness of
the percentage. While not required, using the lodestar method as a
discretionary cross-check further demonstrates that the fee that
Class counsel seeks is reasonable.
A 17.5% award from a $184,456,124 common fund the lower of the two
numbers put forth by the parties in valuing the remedy payments to
class members for the purposes of calculating attorneys' fees would
be $32,279,821.70.
Based on the number of Class counsel's hours in the original fee
motion, which results in a $6.794 million lodestar, the 17.5%
requested award equates to a multiplier of 4.75. With a 14%
increment for additional hours over the past two and one-half years
and a 10% increment for higher hourly rates over the same period,
the adjusted lodestar is $8.513 million, which equates to an
implied multiplier of 3.79 on the adjusted lodestar.
These implied multipliers are in line with other comparable complex
ERISA cases.
In order to avoid further delay in remedy payments to class
members, the Court grants the Plaintiffs' Motion for Attorneys'
Fees and awards attorneys' fees to Class counsel in the amount of
17.5% of the $184,456,124 common fund as valued by Defendants.
A full-text copy of the District Court's November 29, 2018 Ruling
is available at https://tinyurl.com/ya9cwtq5 from Leagle.com.
Janice C. Amara, Ind & o/b/o others similarly situated, Gisela R
Broderick & Annette S Glanz, Plaintiffs, represented by Allison
Caalim Pienta, Law Offices of Stephen R. Bruce, pro hac vice,
Christopher J. Wright, Harris,Wiltshire and Grannis, LLP, pro hac
vice, Stephen R. Bruce &Michael Joseph Walsh, Walsh Woodard LLC.
CIGNA Corp & CIGNA Pension Plan, Defendants, represented by A.
Klair Fitzpatrick -- klair.fitzpatrick@morganlewis.com -- Morgan
Lewis & Bockius LLP, pro hac vice, Bradford S. Babbitt --
bbabbitt@rc.com -- Robinson & Cole, Brett J. Boskiewicz, Robinson &
Cole, LLP, Christopher A. Parlo -- chris.parlo@morganlewis.com --
Morgan, Lewis & Bockius, James A. Wade, Robinson & Cole, Jeremy P.
Blumenfeld -- jeremy.blumenfeld@morganlewis.com -- Morgan, Lewis &
Bockius LLP, pro hac vice, Joseph J. Costello --
joseph.costello@morganlewis.com -- Morgan, Lewis & Bockius LLP, pro
hac vice & Stephanie R. Reiss -- stephanie.reiss@morganlewis.com --
Morgan, Lewis & Bockius LLP, pro hac vice.
CLEAR CHANNEL: Settlement Entered in GAMCO & Norfolk Suit
---------------------------------------------------------
Clear Channel Outdoor, Inc. said in its Form 8-K filing with the
U.S. Securities and Exchange Commission filed on December 17, 2018,
that the Company, GAMCO Asset Management Inc. , Norfolk County
Retirement System, iHeartMedia, Inc., iHeartCommunications, Inc.
Bain Capital Partners, LLC and Thomas H. Lee Partners, L.P., and
certain of its debtor affiliates in the iHeartMedia Chapter 11
cases (the "Debtors"), and the Delaware Individual Defendants,
through their respective counsel, have entered into a settlement
agreement.
On December 29, 2017, Norfolk County Retirement System ("Norfolk"),
a stockholder of Clear Channel Outdoor Holdings, Inc. (the
"Company"), filed a derivative lawsuit in the Court of Chancery of
the State of Delaware, captioned Norfolk County Retirement System,
v. iHeartMedia, Inc., et al., C.A. No. 2017-0930-JRS (the "Norfolk
Action").
The complaint names as defendants iHeartMedia, Inc.
("iHeartMedia"), iHeartCommunications, Inc.
("iHeartCommunications"), Bain Capital Partners, LLC and Thomas H.
Lee Partners, L.P. (together, the "Sponsor Entities"), as the
private equity sponsors and majority owners of iHeartMedia, and the
members of the Company's board of directors (the "Delaware
Individual Defendants"). The Company is named as a nominal
defendant.
On August 27, 2018, GAMCO Asset Management Inc. ("GAMCO"), a
stockholder of the Company, filed a putative class action lawsuit
in the Court of Chancery of the State of Delaware, captioned GAMCO
Asset Management, Inc. v. Hendrix, et al., C.A. No. 2018-0633-JRS
(the "GAMCO Action" and together with the Norfolk Action, the
"Delaware Actions"). The complaint names as defendants the Sponsor
Entities and the Delaware Individual Defendants.
On December 16, 2018, the Company, GAMCO, Norfolk, the Sponsor
Entities, iHeartMedia and certain of its debtor affiliates in the
iHeartMedia Chapter 11 cases (the "Debtors"), and the Delaware
Individual Defendants, through their respective counsel, entered
into a settlement agreement (the "Settlement Agreement") that
embodies the terms of (i) a global settlement of all direct or
derivative claims by or on behalf of GAMCO and Norfolk, both
individually and on behalf of the putative class of public
shareholders of the Company (collectively, the "Settling
Plaintiffs"), against the Delaware Individual Defendants, the
Sponsor Entities, iHeartCommunications, iHeartMedia, the Company
and the Debtors, and (ii) the separation of the Company from
iHeartMedia (the "Separation") in accordance with the plan of
reorganization (the "iHeartMedia Plan of Reorganization") filed by
iHeartMedia with the United States Bankruptcy Court for the
Southern District of Texas (the "Bankruptcy Court") pursuant to
Chapter 11 of the Bankruptcy Code.
The Settlement Agreement contemplates that upon the separation of
the Company from iHeartMedia, (i) the cash sweep arrangement under
the existing corporate services agreement (the "Corporate Services
Agreement") between the Company and iHeartCommunications, a
subsidiary of iHeartMedia, will terminate, (ii) any agreements or
licenses requiring royalty payments to iHeartMedia and its debtor
affiliates by the Company for trademarks or other intellectual
property will terminate and (iii) a new transition services
agreement will supersede and replace the existing Corporate
Services Agreement.
The Debtors agreed to waive (i) the set-off for the value of the
intellectual property transferred, including royalties and (ii) the
repayment of the post-petition intercompany balance outstanding in
favor of the Debtors as of December 31, 2018.
In addition, the Settlement Agreement provides that after the
Separation, (i) iHeartCommunications will provide an unsecured
revolving line of credit in an aggregate amount not to exceed $200
million to the Company for a period of no more than three years
following the effective date of the iHeartMedia Plan of
Reorganization (the "iHeartCommunications Line of Credit"), (ii)
iHeartMedia will indemnify the Company for 50% of certain tax
liabilities imposed on the Company in connection with the
Separation on or prior to the third anniversary of the Separation
in excess of $5.0 million, with iHeartMedia's aggregate liability
limited to $15.0 million, and (iii) iHeartMedia will reimburse the
Company for one-third of potential costs relating to certain leases
between the Company and third parties in excess of $10.0 million of
such costs up to the first $35.0 million of such costs such that
iHeartMedia will not bear more than $8.33 million of such costs.
The parties agreed that the Company will recover 14.4% in cash on
its allowed claim of $1,031,721,306 under the intercompany note
owed by iHeartCommunications to the Company, and to mutual
releases, including a release of all claims that have been
asserted, could have been asserted or ever could be asserted with
respect to iHeartMedia’s Chapter 11 cases and the Delaware
Actions.
The Settlement Agreement contemplates that upon the effective date
of the iHeartMedia Plan of Reorganization, the separation of the
Company from iHeartMedia will occur pursuant to the terms of the
iHeartMedia Plan of Reorganization, the settlement term sheet dated
November 22, 2018 (the "Settlement Term Sheet") and the forms of
separation documents attached as exhibits to the Settlement
Agreement, including forms of a settlement and separation
agreement, a transition services agreement, a tax matters
agreement, a merger agreement (the "Merger Agreement") providing
for the merger (the "Merger") of the Company with and into Clear
Channel Holdings, Inc. ("CCH"), its parent company, immediately
prior to the Separation, and a revolving loan agreement governing
the terms of the iHeartCommunications Line of Credit.
The form of Merger Agreement contemplates that in the Merger, the
shares of the Company's Class A common stock will be converted into
an equal number of shares of common stock of CCH, which will be
renamed Clear Channel Outdoor Holdings, Inc. ("New CCOH") and will
represent the same percentage of ownership in New CCOH that the
Class A common stockholders have in the Company immediately prior
to the Merger.
The iHeartMedia Plan of Reorganization contemplates that
immediately following the Merger, the New CCOH common stock held by
iHeartCommunications will be transferred by iHeartCommunications to
certain holders of claims in the iHeartMedia Chapter 11 cases
pursuant to the iHeartMedia Plan of Reorganization, and New CCOH
will become an independent public company.
Clear Channel Outdoor, Inc., an outdoor advertising company,
provides outdoor advertising services to customers in the United
States. The company offers airport advertising products, bulletins,
bus advertising, commuter rail advertising, connect mobile
platform, digital billboards, junior posters, mobile billboards,
news racks, posters, premiere panels, premiere squares,
spectaculars, transit shelters, and walls capes advertising. Clear
Channel Outdoor, Inc. was formerly known as Eller Media Company and
changed the name to Clear Channel Outdoor, Inc. in July 2001. The
company was founded in 1901 and is headquartered in New York, New
York. Clear Channel Outdoor, Inc. operates as a subsidiary of Clear
Channel Outdoor Holdings Inc.
COMPUWARE CORP: Mich. App. Affirms Summary Judgment in Karmanos
---------------------------------------------------------------
The Court of Appeals of Michigan issued an Opinion affirming the
judgment of the District Court granting Defendant'S Motion for
Summary Judgment in the case captioned PETER KARMANOS, JR., and
DANIALLE KARMANOS, as Custodian for SOCRATES KARMANOS, LEONIDAS
KARMANOS, ARISTIDES KARMANOS, and SPIROS KARMANOS, Minors,
Plaintiffs-Appellants, v. GURMINDER S. BEDI, WILLIAM O. GRABE,
ROBERT C. PAUL, DANIEL S. FOLLIS, JR., COMPUWARE CORPORATION,
ELLIOTT ASSOCIATES, LP, FREDERICK A. HENDERSON, and THOMA BRAVO,
LLC, Defendants-Appellees, and PROJECT COPPER HOLDINGS, LLC and
PROJECT COPPER MERGER CORP., Defendants. No. 336577. (Mich. App.).
THE Plaintiffs, by their custodian Danialle Karmanos (the minor
plaintiffs), appeal as of right the order of the trial court
granting summary disposition in favor of defendants, Gurminder S.
Bedi, Frederick A. Henderson, William O. Grabe, Robert C. Paul,
Daniel S. Follis, Jr., Compuware Corporation, Elliott Associates,
LP (Elliott), and Thoma Bravo, LLC (Thoma Bravo).
This case arises from the merger and acquisition of Compuware by
Thoma Bravo. Plaintiffs allege that Elliott and Thoma Bravo acted
in tandem to manipulate an undervaluation of Compuware and thereby
enabled Thoma Bravo to buy the company at a price below its true
value. Plaintiffs, as former shareholders, argue that they were
forced by these events to sell their shares at the devalued price,
and therefore brought this action seeking to hold accountable
Compuware, certain Board members of Compuware, Elliott, and Thoma
Bravo.
THE Plaintiffs initiated this case, alleging breach of fiduciary
duty, breach of the Michigan Uniform Securities Act, fraud,
conversion, civil conspiracy, unjust enrichment, money had and
received, rescission, and constructive reformation.
THE Defendants moved for summary disposition under MCR 2.116(C)(5),
(7), and (8), arguing that plaintiffs lacked standing due to the
derivative nature of the lawsuit, that plaintiffs' suit was barred
by the earlier shareholder class action, and that plaintiffs had
failed to state a claim upon which relief could be granted.
The trial court granted defendants summary disposition as to each
of plaintiffs' claims under MCR 2.116(C)(5), (7), and (8).
DERIVATIVE OR DIRECT CLAIMS
The term standing generally refers to the right of a plaintiff to
invoke the power of a trial court to adjudicate a claimed injury.
To have standing, a party must have a legally protected interest
that is in jeopardy of being adversely affected. The purpose of the
standing doctrine is to assess whether a litigant's interest in the
issue is sufficient to ensure sincere and vigorous advocacy.
Whether a plaintiff has standing to sue in the context of alleged
harm experienced by a shareholder of a corporation, however,
depends upon whether the alleged harm is direct or derivative.
Directors of a corporation owe fiduciary duties to shareholders and
are obligated to act in good faith for the benefit of the
corporation, and an officer or director of a corporation who acts
based on self-interest rather than for the benefit of the
corporation breaches a fiduciary duty to the corporation's
shareholders.
In this case, the plaintiffs alleged that the breach of fiduciary
duties by members of Compuware's board of directors, and the fraud
allegedly perpetrated by Elliott to effectuate the acquisition of
the company, resulted in the artificially low valuation of
Compuware stock, which in turn resulted in financial loss to
plaintiffs. The alleged incorrect valuation of Compuware's stock,
however, would not have been a loss experienced only by plaintiffs,
but rather would have been incurred by all shareholders. Plaintiffs
thus have not demonstrated that they sustained a loss separate and
distinct from that of other shareholders generally, nor have they
shown a violation of a duty owed directly to them and not to the
corporation generally.
The Court therefore concludes that the trial court did not err in
finding plaintiffs' claims to be derivative because the claimed
injuries would have arisen from breaches of duties owed to the
corporation and to all shareholders.
MCL 450.1492a AND MCL 450.1493a
The trial court determined that plaintiffs did not have standing,
reasoning that Karmanos was not a shareholder at the times relevant
to the claims in this case, and that the minor plaintiffs had
failed to comply with the statutory requirement of submitting a
written demand before filing a derivative suit.
Generally, a shareholder derivative suit may be brought by one or
more shareholders suing in a representative capacity. MCL
450.1492a. That statutory section provides: "A shareholder may not
commence or maintain a derivative proceeding unless the shareholder
meets all of the following criteria:(a) The shareholder was a
shareholder of the corporation at the time of the act or omission
complained of or became a shareholder through transfer by operation
of law from one who was a shareholder at that time.(b) The
shareholder fairly and adequately represents the interests of the
corporation in enforcing the right of the corporation.(c) The
shareholder continues to be a shareholder until the time of
judgment, unless the failure to continue to be a shareholder is the
result of corporate action in which the former shareholder did not
acquiesce and the derivative proceeding was commenced prior to the
termination of the former shareholder's status as a shareholder."
In this case, Karmanos was not a shareholder of the corporation at
the time most of the alleged acts occurred and was not a
shareholder at the time that the trial court's judgment was entered
in December 2016, having sold his shares in Compuware in late 2013.
Karmanos therefore lacked standing under MCL 450.1492a to bring a
shareholder derivative suit against defendants. With regard to the
minor plaintiffs, although the shareholders approved the merger and
the merger closed in December of 2014, the shareholder derivative
suit did not conclude until the trial court dismissed the case with
prejudice in May 2016, and thus this action, commenced on October
20, 2015, began before the termination of the minor plaintiffs'
status as shareholders, resulting in the minor plaintiffs' ability
to meet the requirements of MCL 450.1492a.
The trial court found, however, that the minor plaintiffs were
precluded from bringing this derivative action because they failed
to make a written demand on Compuware in accordance with MCL
450.1493a.
Here, the minor plaintiffs acknowledge they did not file a demand
with Compuware under MCL 450.1493a, but argue that the demand made
in the earlier shareholder derivative action fulfilled this
requirement and also demonstrated that a further demand would have
been futile. MCL 450.1493a, however, does not provide an exception
to the demand requirement. Rather, the statute requires a
shareholder commencing a derivative proceeding to make a written
demand upon the corporation ninety days before bringing the
derivative suit unless the shareholder has earlier been notified
that the demand has been rejected by the corporation.
This statutory language does not express an exemption from the
requirement of making a demand in cases where a demand would be
futile; rather this language provides that waiting 90 days after
the demand is made before filing the complaint is not necessary if
the demand has been issued and rejected before the 90 days have
elapsed.
The minor plaintiffs' failure in this case to comply with MCL
450.1493a by providing a demand to Compuware renders them
ineligible to bring this derivative suit under MCL 450.1493a. The
trial court therefore properly granted defendants summary
disposition under MCR 2.116(C)(5.
Affirmed.
A full-text copy of the Mich. App.'s November 29, 2018 Opinion is
available at https://tinyurl.com/yaok8ula from Leagle.com.
E. POWELL MILLER -- epm@millerlawpc.com -- for PETER KARMANOS, JR.,
Plaintiff-Appellant.
ANDREW J. KOLOZSVARY -- akolozsvary@dykema.com -- LORI M.
McALLISTER -- lmcallister@dykema.com -- JILL M. WHEATON --
jwheaton@dykema.com -- for GURMINDER S. BEDI, Defendant-Appellee.
DAVID F. DUMOUCHEL -- dumouchd@butzel.com -- ROBIN LUCE HERRMANN --
luce-herrmann@butzel.com -- for ELLIOTT ASSOCIATES L.P.,
Defendant-Appellee.
TODD A. HOLLEMAN -- holleman@millercanfield.com -- for THOMA BRAVO
LLC, Defendant-Appellee.
CONNECTICUT: Court Grants Bid to Amend Barfield ADA Suit
--------------------------------------------------------
In the case, ROBERT BARFIELD, ET AL, Plaintiff, v. SCOTT SEMPLE,
Defendant, Case No. 3:18-cv-1198 (MPS) (D. Conn.), Judge Michael P.
Shea of the U.S. District Court for the District of Connecticut
granted (i) the Plaintiff's motion for leave to amend the
complaint, and (ii) the Plaintiff's motion to join Commissioner
Semple in his individual capacity and four additional Plaintiffs.
On July 19, 2018, the Plaintiff filed a complaint for declaratory
and injunctive relief against Semple in his official capacity as
the Commissioner of the Connecticut Department of Correction. On
Sept. 28, 2018, the Defendant filed a motion to strike class action
allegations from the complaint, and a motion to dismiss the action
pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
The Court subsequently permitted the Plaintiff to file an amended
complaint, and gave the Plaintiff until Nov. 20, 2018 to do so.
On Nov. 20, 2018, the Plaintiff filed a motion for leave to amend
the complaint, and a motion to join Commissioner Semple in his
individual capacity and four additional Plaintiffs.
The Defendant opposes both motions. The Defendant argues that the
amended complaint fails to comply with Federal Rule of Civil
Procedure 8 and opposes the joinder of Commissioner Semple in his
individual capacity.
As to the the motion to amend, Judge Shea finds that at least
absent full briefing under Rule 12(b)(6), the Defendant does not
show that the Plaintiffs fail to allege failure to supervise under
the law. Similarly, with regard to standing, the Defendant cannot
make the showing in light of the Plaintiffs' claim for compensatory
and punitive damages. Finally, the Defendant argues that in the
context of the case, any proposed complaint that includes money
damages would be subject to a motion to dismiss and the money
damages claims would be barred by qualified immunity. However, the
Judge holds that a determination about qualified immunity at this
stage of litigation would be premature and the Defendant does not
meet the high standard required to show futility. Thus, he will
grant the Plaintiffs' motion to amend without prejudice to the
filing of a motion to dismiss.
Turning to the motion for joinder, the Judge finds that while he is
sympathetic to the plight of the soon-to-be retired Commissioner,
the same set of facts provide the foundation for the individual and
official capacity claims, and permissive joinder is therefore
appropriate. The Defendant "does not oppose joinder of the
putative plaintiffs Barberi, Knapp, Davis and Tatem, except to the
extent that they too seek individual money damages. Since the
claim for money damages may proceed, joinder of the putative
Plaintiffs is appropriate.
For these reasons, Judge Shea granted the motion to amend, and the
motion for joinder. As such, he denied as moot the Defendant's the
motion to strike and motion to dismiss.
A full-text copy of the Court's Dec. 18, 2018 Ruling and Order is
available at https://is.gd/dNaPQ3 from Leagle.com.
Robert Barfield, Plaintiff, represented by Kenneth James Krayeske
-- attorney@kenkrayeske.com -- Kenneth J. Krayeske Law Offices &
DeVaughn L. Ward -- info@attyward.com -- Ward Law LLC.
Scott Semple, in his official capacity As Commissioner of the
Connecticut Department of Correction, Defendant, represented by
Steven R. Strom, Office of the Attorney General & Terrence M.
O'Neill, Attorney General's Office.
COSTCO WHOLESALE: Canela Suit Stayed Pending 9th Cir. Appeal
------------------------------------------------------------
Costco Wholesale Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on December 20, 2018,
for the quarterly period ended November 3, 2018, that the case
Canela v. Costco Wholesale Corp., et al. has been stayed by the
court pending review by the U.S. Court of Appeals for the Ninth
Circuit of the order certifying a class.
The Company is a defendant in a class action alleging violation of
California Wage Order 7-2001 for failing to provide seating to
member service assistants who act as greeters and exit attendants
in the Company's California warehouses. Canela v. Costco Wholesale
Corp., et al. (Case No. 5:13-cv-03598, N.D. Cal. filed July 1,
2013).
The complaint seeks relief under the California Labor Code,
including civil penalties and attorneys' fees.
The Company filed an answer denying the material allegations of the
complaint. The plaintiff has since indicated that exit attendants
are no longer a subject of the litigation. The action in the
district court has been stayed pending review by the Ninth Circuit
of the order certifying a class.
On September 6, 2018, counsel claiming to represent an employee
notified the California Labor and Workforce Development agency of
an intention to bring similar claims concerning Costco employees
engaged at member services counters.
Costco Wholesale Corporation, together with its subsidiaries,
operates membership warehouses. It offers branded and private-label
products in a range of merchandise categories. The company was
formerly known as Costco Companies, Inc. Costco Wholesale
Corporation was founded in 1976 and is based in Issaquah,
Washington.
CSC HOLDINGS: Court Narrows Claims in D. Zemel's TCPA Suit
----------------------------------------------------------
The United States District Court for the District of New Jersey
issued an Opinion granting in part and denying in part Defendant's
Motion to Dismiss the case captioned DANIEL ZEMEL, on behalf of
himself, and all others similarly situated, Plaintiff, v. CSC
HOLDINGS LLC, Defendant. Civil Action No. 18-2340-BRM-DEA.
(D.N.J.).
Before this Court is Defendant CSC Holdings, LLC's (CSC Holdings)
Motion to Dismiss the Complaint, pursuant to Federal Rule of Civil
Procedure 12(b)(6).
Zemel alleges these unsolicited text messages were placed via an
automatic telephone dialing system, (ATDS), which had the capacity
to produce or store numbers randomly or sequentially, to dial such
numbers, to place text message calls to Zemel's cellular telephone.
Zemel asserts the unsolicited text messages harmed him and proposed
class members by causing them to incur additional message and/or
data charges to their cell phone accounts. Plaintiff also alleges
the text messages were a nuisance.
Motion to Dismiss Pursuant to 12(b)(6)
ATDS
CSC Holdings argues Zemel has failed to state a claim under the
TCPA because he has not adequately plead the use of an ATDS. Zemel
argues he sufficiently alleged the use of an ATDS at this stage of
the litigation.
To state a cause of action under the TCPA, a plaintiff must allege:
(1) the defendant called a cellular telephone number (2) using an
ATDS (3) without the recipient's prior express consent. The TCPA
defines an ATDS as equipment which has the capacity to store or
produce telephone numbers to be called, using a random or
sequential number generator; and (B) to dial such numbers.
The only issue before the Court is whether Zemel has pled facts
that support a finding that CSC Holdings used an ATDS in such a
manner that violates the TCPA. To satisfy this element, courts
permit the allegation of an automatic system to be pled on
information or belief, but require additional factual information,
such as the absence of a relationship between the parties and the
random nature of the automation device.
Other courts, including courts within this District, have found
that a bare allegation that defendants used an ATDS is not enough.
A plaintiff must provide at least some detail regarding the content
of the messages or calls, thereby rending the claim that an ATDS
was used more plausible.
This Court previously denied a defendant's motion to dismiss
finding that plaintiff's allegations regarding the content of the
alleged messages allowed the Court to infer that calls were placed
using an ATDS.
CSC Holdings argues, The only reasonable inference from Zemel's
factual allegation, Your mobile number was added for Optimum ID
joan 2325, is that the number was added to a customer's or
authorized user's account by a live person and the number was
contacted as a result of this affirmative human action, not by the
use of an ATDS situation. While that may prove to be the case,
simply presenting an alternative explanation for the facts alleged
in the Complaint does not mean the Complaint fails to plausibly
state a claim at this stage.
Accordingly, CSC Holdings' Motion is denied as to this issue.
CSC Holdings' Second Text Message
CSC Holdings contends Zemel's claims based on the alleged second
text message should be dismissed because Zemel consented to the
sending of that message. Zemel does not respond to this argument in
its opposition brief. The failure to respond to a substantive
argument to dismiss a count, when a party otherwise files
opposition, results in a waiver of that count.
When an individual sends a message inviting a responsive text,
there is no TCPA violation. The TCPA prohibits a party from using
an ATDS to initiate any telephone call to any residential telephone
line using an artificial or prerecorded voice to deliver a message
without the prior express consent of the called party, unless the
call falls within one of the statute's enumerated exemptions.
Accordingly, CSC Holdings' Motion to Dismiss any TCPA claims as to
the second text message is granted.
CSC Holdings' Third Text Message
CSC Holdings also argues its alleged third text message was a
permissible confirmatory message. Again, Zemel does not respond to
this argument in its opposition brief other than to say it was
non-confirmatory. Therefore, the failure to respond to a
substantive argument on its own results in a waiver of that count.
In 2012, the FCC issued a declaratory ruling explaining that
certain one-time texts confirming a request that no further text
messages be sent do not violate the TCPA.
Here, the text in dispute was received after Zemel replied STOP to
a CSC Holdings text message and states, Let us know which messages
you wish to stop: Service Alerts-STOP SRVC, Appointment Alerts-STOP
APPT. Not only is this clearly a confirmatory text, not including
any marketing material, but it was the only additional text message
sent.
Therefore, CSC Holdings' Motion to Dismiss any TCPA claim as to the
third text message is also granted.
Accordingly, CSC Holdings' Motion to Dismiss is denied as to CSC
Holdings' alleged first text message but granted as to text
messages two and three.
A full-text copy of the District Court's November 29, 2018 Opinion
is available at https://tinyurl.com/ycglsehf from Leagle.com.
DANIEL ZEMEL, individually and on behalf of all others similarly
situated, Plaintiff, represented by YITZCHAK ZELMAN --
Yzelman@MarcusZelman.com -- Marcus Zelman, LLC & ARI HILLEL MARCUS
-- Ari@MarcusZelman.com -- MARCUS ZELMAN LLC.
CSC HOLDINGS, LLC, Defendant, represented by JAMES HENRY FORTE --
jforte@saiber.com -- SAIBER, SCHLESINGER, SATZ & GOLDSTEIN, LLC &
KATHERINE ANN ESCANLAR -- kescanlar@saiber.com -- SAIBER LLC.
CULLIGAN INTERNATIONAL: Kapp Sues over Telemarketing Phone Calls
----------------------------------------------------------------
AARON KAPP, individually and as the representative of a class of
similarly situated persons, the Plaintiff, vs. CULLIGAN
INTERNATIONAL COMPANY, the Defendant, Case No. 2018CH15540 (Ill.
Cir. Ct., Cook Cty., Dec. 14, 2018), seeks relief from Defendant's
practice of initiating, or causing the initiation of, telephone
calls to residential landline telephones using an artificial or
prerecorded voice to deliver an advertisement or telemarketing
message without the called party's prior express written consent,
in violation of the Telephone Consumer Protection Act.
According to the complaint, Culligan's practice caused Kapp and
consumers actual harm, not only because they were subjected to the
aggravation that necessarily accompanies telemarketing to
residential landline telephone numbers, but also because they have
to pay their phone service providers for the receipt of such
message or calls, and such messages or calls use voicemail or
answering machine storage capacity and are an intrusion upon
privacy and seclusion. Culligan is liable to Kapp for at least $500
per call. If Culligan's actions were knowing or willful, then the
Court has the discretion to increase the statutory damages up to
three times the amount, the lawsuit says.
Culligan is a water filtration and water softening company that
provides in-home services. Culligan profits from the service and
sale of water filtration parts to consumers with Culligan drinking
water systems already installed.[BN]
Attorneys for Plaintiff:
Phillip A. Bock, Esq.
Tod A. Lewis, Esq.
David M. Oppenheim, Esq.
Mara A. Baltabols, Esq.
BOCK, HATCH, LEWIS & OPPENHEIM, LLC
134 N. La Salle Street, Suite 1000
Chicago, IL 60602
Telephone: (312) 658-5500
E-mail: service@classlawyers.com
- and -
Ilan Chorowsky, Esq.
Mark Bulgarelli, Esq.
Adam Urbanczyk, , Esq.
PROGRESSIVE LAW GROUP, LLC
1570 Oak Ave. Suite 103
Evanston, IL 60201
Telephone: (312) 787-2717
E-mail: courts@progressivelaw.com
CURO GROUP: Keller Lenkner Files Securities Class Action
--------------------------------------------------------
Keller Lenkner LLC on Dec. 5 disclosed that a class action has been
commenced on behalf of all purchasers of securities of CURO Group
Holdings Corp. ("CURO" or the "Company") (NYSE: CURO) from July 31,
2018 through and including October 24, 2018 (the "Class Period").
The action was filed in the District of Kansas and is captioned
Yellowdog Partners, LP v. CURO Group Holdings Corp., et al., No.
2:18-cv-02662.
The complaint alleges that CURO and certain senior executives --
Defendants Donald F. Gayhardt, William Baker and Roger Dean --
violated the Securities Exchange Act of 1934 by issuing false and
misleading statements, including ongoing financial guidance,
relating to CURO's efforts to transition its Canadian inventory of
products from "Single-Pay Loans" to "Open-End Loans." In this
regard, throughout the Class Period, Defendants materially
misrepresented to investors the deleterious effect that the
up-front loan loss provisioning in connection with the transition
was having on the Company's financial performance and 2018
full-year Company guidance. The truth was revealed after the
market closed on October 24, 2018, when the Company announced
disappointing financial results for the third quarter of 2018 and
substantially reduced its guidance for full-year fiscal 2018. Upon
revelation of the true facts, CURO stock lost $7.69 per share,
falling from $22.87 on October 24, 2018, the last day of the Class
Period, to $15.18 on October 25, 2018.
If you wish to serve as lead plaintiff for the class, you must file
a motion with the Court no later than February 4, 2019, which is
the first business day on which the U.S. District Court for the
District of Kansas is open that is 60 days after the publication
date of December 5, 2018. Any member of the proposed class may
move the Court to serve as lead plaintiff through counsel of their
choice.
The plaintiff is represented by Keller Lenkner. If you wish to
discuss this action or have any questions concerning this notice or
your rights or interests, please contact plaintiff's counsel,
Ashley Keller of Keller Lenkner, at (312) 741-5220 or by email at
ack@kellerlenkner.com.
Keller Lenkner -- http://www.kellerlenkner.com-- pursues
high-stakes litigation for plaintiffs across a variety of claims
and practice areas. Its lawyers are uniquely situated at the
intersection of law and finance, with experience that includes
litigating in federal and state courts throughout the United
States. [GN]
EDMUND'S HOLDINGS: Garner Sues Over Illegal SMS Ads
---------------------------------------------------
Curtis Garner, individually and on behalf on all others similarly
situated, Plaintiff, v. Edmund's Holdings, Defendant, Case No.
18-cv-04432 (D. Ariz., December 5, 2018), seeks injunctive relief,
statutory damages and any other available legal or equitable
remedies for violations of the Telephone Consumer Protection Act.
Edmund's Holdings operates as Revolution Hair Loss & Skin
Institute, and uses SMS ads to promote its business. At no point in
time did Garner provide Edmund's with his express written consent
to be contacted using an automatic telephone dialing system, notes
the complaint.[BN]
The Plaintiff is represented by:
David J. McGlothlin, Esq.
HYDE & SWIGART
2633 E. Indian School Road, Suite 460
Phoenix, AZ 85016
Telephone: (602) 265-3332
Facsimile: (602) 230-4482
Email: david@westcoastlitigation.com
- and -
Ryan L. McBride, Esq.
KAZEROUNI LAW GROUP, APC
2633 E. Indian School Road, Suite 460
Phoenix, AZ 85016
Telephone: (602) 900-1288
Facsimile: (800) 520-5523
Email: ryan@kazlg.com
ELECTRO SCIENTIFIC: Faces Klein Securities Suit Over MKS Merger
---------------------------------------------------------------
MELVYN KLEIN, individually and on behalf of himself and all others
similarly situated v. ELECTRO SCIENTIFIC INDUSTRIES, INC.; MICHAEL
D. BURGER; LAURENCE E.CRAMER; RAYMOND A. LINK; FREDERICK A. BALL;
RICHARD H. WILLS; and LYNNE J. CAMP, Case No. 3:18-cv-02099-YY (D.
Ore., December 6, 2018), alleges violations of the Securities
Exchange Act of 1934, in connection with the proposed merger of ESI
and MKS Instruments, Inc.
On October 29, 2018, the Board of Directors caused the Company to
enter into an agreement and plan of merger, pursuant to which ESI
shareholders will receive $30 in cash for each share of ESI common
stock they hold.
On November 19, 2018, the Board filed with the Securities and
Exchange Commission an alleged misleading Proxy Statement. The
Plaintiff contends that the Defendants failed to disclose material
information that is necessary for shareholders to properly assess
the fairness of the Proposed Merger.
ESI maintains its principal executive offices in Portland, Oregon.
The Individual Defendants are directors and officers of ESI. ESI
is an innovator in laser-based manufacturing solutions for the
micro-machining industry.
MKS Instruments, Inc., is a global provider of technologies that
enable advanced processes and improve productivity.[BN]
The Plaintiff is represented by:
Nadia H. Dahab, Esq.
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 SW Oak Street, Suite 500
Portland, OR 97204
Telephone: (503) 227-1600
Facsimile: (503) 227-6840
E-mail: ndahab@stollberne.com
- and -
Thomas J. McKenna, Esq.
Gregory M. Egleston, Esq.
GAINEY McKENNA & EGLESTON
440 Park Avenue South
New York, NY 10016
Telephone: (212) 983-1300
Facsimile: (212) 983-0380
E-mail: tjmckenna@gme-law.com
gegleston@gme-law.com
ELECTRONIC TRANSACTION SYSTEMS: Sued for Showing Credit Card Info
-----------------------------------------------------------------
EVERGREEN ALLIANCE GOLF LIMITED, L.P., d/b/a Arcis Golf, the
Plaintiff, vs. ELECTRONIC TRANSACTION SYSTEMS CORPORATION, the
Defendant, Case No. DC-18-18693 (Tex. Dist. Ct., Dallas Cty., Dec.
14, 2018), alleges that Defendant printed more credit card digits
than allowed.
This litigation arises from ETS's grossly negligent unilateral
decision to alter payment processing software -- without Arcis's
knowledge or permission -- to cause Arcis's transaction receipts to
show more credit card digits than allowed by Credit Transactions
Act.
According to the complaint, on or about December 15, 2016, ETS
unilaterally pushed out a software update for the specific purpose
of printing receipts that displayed the first six and last four
digits of the credit and debit card numbers used to make the
purchases, in violation of the last-five-digits limit under the
Fair and Accurate Credit Transactions Act. Prior to this update,
Arcis's point of sale equipment printed only receipts displaying
the last four digits of credit and debit card numbers. At no point
did ETS inform Arcis that it was updating the software to display
additional card digits, nor was Arcis given the option to evaluate
whether it need or wanted the software update.
As a direct result of ETS's update, Arcis's point-of-sale systems
started printing receipts displaying the first six and last four
digits of consumers' credit and debit card numbers. Hundreds of
thousands of such receipts were printed. On or about May 24, 2017,
as soon as Arcis became aware of the receipt defects, it contacted
ETS for an explanation and to fix the underlying issue. On June 23,
2017, Miguel Ortega, ETS's Vice President of Systems
Implementation, acknowledged ETS had caused the error and would
undertake to fix it. At no point, however, did ETS actually fix the
underlying problem. Instead, Arcis had to locate the underlying
problem and fix it itself, the lawsuit.
ETS is a Virginia corporation with its principal place of business
in Sterling, Virginia.[BN]
Attorneys for Plaintiff:
Kenneth S. Gaines, Esq.
Daniel F. Gaines, Esq.
Alex P. Katofsky, Esq.
GAINES & GAINES, APLC
27200 Agoura Road, Suite 101
Calabasas, CA 91301
Attorneys for Defendant:
David Almeida, Esq.
Mark S. Eisen, Esq.
BENESEH, FRIEDLANDER, COPLAN & ARONOFF L.L.P
333 West Wacker Drive, Suite 1900
Chicago, IL 60606
ENJOY THE CITY: Underpays Sales Associates, Dexheimer Suit Says
---------------------------------------------------------------
RICHARD DEXHEIMER, individually and on behalf of all other
similarly situated, Plaintiff v. ENJOY THE CITY NORTH, INC. d/b/a
SAVEAROUND, Defendant, Case No. 6:18-cv-01980 (M.D. Fla., Nov. 16,
2018) seeks to recover from the Defendant unpaid overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
The Plaintiff Dexheimer was employed by the Defendant as sales
associate.
Enjoy The City North, Inc. d/b/a Savearound is engaged as an
advertising agency. [BN]
The Plaintiff is represented by:
Paul L. Sutherland, Esq.
Nathan McCoy, Esq.
WILSON MCCOY, P.A.
100 E. Sybelia Ave., Suite 205
Maitland, FL 32751
Telephone: (407) 803-5400
Facsimile: (407) 803-4617
E-mail: psutherland@wilsonmmccoylaw.com
nmccoy@wilsonmccoylaw.com
FEDEX GROUND PACKAGE: Removes Dolan Suit to C.D. California
-----------------------------------------------------------
The Defendant in the case of PHILIP DOLAN, individually and on
behalf of others similarly situated, Plaintiff v. FEDEX GROUND
PACKAGE SYSTEM, INC., Defendant, filed a notice to remove the
lawsuit from the Superior Court of the State of California, County
of Santa Clara (Case No. 18CV336258) to the U.S. District Court for
the Northern District of California on November 15, 2018. The clerk
of court for the Northern District of California assigned Case No.
Case No. 5:18-cv-06934-NC. The case is assigned to Judge Nathanael
M. Cousins.
FedEx Ground Package System, Inc. provides business-to-business
package shipping and ground delivery services. The company was
formerly known as Roadway Package System, Inc. and changed its name
to FedEx Ground Package System, Inc. in 1998. The company was
incorporated in 1984 and is based in Coraopolis, Pennsylvania with
additional offices in Independence, Kentucky. FedEx Ground Package
System, Inc. operates as a subsidiary of FedEx Corporation. [BN]
The Plaintiff is represented by:
Matthew Roland Bainer, Esq.
THE BAINER LAW FIRM
1901 Harrison St., Suite 1100
Oakland, CA 94612
Telephone: (510) 922-1802
Facsimile: (510) 844-7701
E-mail: mbainer@bainerlawfirm.com
The Defendant is represented by:
Katherine P. Sandberg, Esq.
FISHER & PHILLIPS LLP
621 Capitol Mall, Suite 1400
Sacramento, CA 95814
Telephone: (916) 210-0400
Facsimile: (916) 210-0401
E-mail: ksandberg@fisherphillips.com
- and -
Brandy Thompson Cody, ESq.
James C. Fessenden, Esq.
FISHER & PHILLIPS, LLP
4747 Executive Drive, Suite 1000
San Diego, CA 92121
Telephone: (858) 597-9600
Facsimile: (858) 597-9601
E-mail: bcody@fisherphillips.com
jfessenden@fisherphillips.com
FIRST STUDENT: Galvan Suit Moved to Northern Dist. of California
----------------------------------------------------------------
A case, Barbara Galvan, on behalf of herself and all others
similarly situated, the Plaintiff, vs. First Student Management,
LLC, a Delaware limited liability company; FirstGroup America,
Inc., a Delaware corporation; and First Transit, Inc., a Delaware
corporation, the Defendants, Case No. 18CIV06012, was removed from
the San Mateo Superior Court, to the U.S. District Court for the
Northern District of California (San Francisco) on Dec. 7, 2018.
The Northern District of California Court Clerk assigned Case No.
3:18-cv-07378-TSH to the proceeding. The suit alleges job-related
violation. The case is assigned to the Hon. Magistrate Judge Thomas
S. Hixson.
FirstGroup America, Inc. offers transportation and fleet services
in North America.[BN]
Attorneys for Plaintiff:
Chaim Shaun Setareh, Esq.
Howard Scott Leviant, Esq.
William Matthew Pao, Esq.
SETAREH LAW GROUP
315 South Beverly Drive, Suite 315
Beverly Hills, CA 90212
Telephone: (310) 888-7771
Facsimile: (310) 888-0109
E-mail: shaun@setarehlaw.com
scott@setarehlaw.com
william@setarehlaw.com
Attorneys for Defendants:
David J Dow, Esq.
Matthew Bryan Riley, Esq.
LITTLER MENDELSON, P.C.
501 W. Broadway, Suite 900
San Diego, CA 92101
Telephone: (619) 232-0441
Facsimile: (619) 232-4302
E-mail: ddow@littler.com
mriley@littler.com
GANNETT CO: Attorney Balks at Class Action Objectors
----------------------------------------------------
John Sammon, writing for Cook County Record, reports that an
attorney whose practice focuses on helping defend complex class
action lawsuits said the rise of class action objectors milking the
litigation system for quick payoffs has become a thorn in the side
of businesses and attorneys attempting to settle lawsuits.
"Professional objectors troll the dockets for class settlements,
then object to the settlement and threaten an appeal," Michael L.
DeMarino of Seyfarth Shaw in Chicago told the Cook County Record.
"By appealing, serial objectors know they can potentially delay a
settlement pay day for years. Because class counsel is paid out of
a settlement fund, they are often forced to settle out with these
objectors or face additional costs and delays."
An illustrative example is the case involving two lawyers described
as "professional objectors" who face a hearing and possibly
disciplinary action over an alleged attempt to secure a payoff of
hundreds of thousands of dollars in a class action.
On Nov. 26, the Illinois First District Appellate Court in a
three-justice panel judgment released a Nov. 20 that overturned a
decision of Cook County Judge Pamela McLean Meyerson, who had
blocked an attempt by lawyers from the Chicago-based law firm
Edelson PC to impose sanctions against attorneys Christopher Bandas
and Jeffrey Thut.
The pair had represented a California man who objected to a
settlement Edelson secured for a class of plaintiffs.
Judge Meyerson granted a motion preventing Edelson attorneys from
presenting evidence alleging a pattern of abuse by Messrs. Bandas
and Thut representing objectors simply to leverage payoffs in
exchange for withdrawing objections and letting class actions
settle.
The case had its origins in 2016 when a $13.8 million settlement
was reached in a class action against Gannett Co., a Virginia
newspaper publisher, over alleged violations of the Telephone
Consumer Protection Act (TCPA).
As part of the settlement, Cook County Judge Kathleen Kennedy
awarded the Edelson firm more than $5.3 million, approximately 39
percent of the total award.
However, Mr. Thut, representing California resident Gary Stewart,
filed an objection contending the attorney payoff was too high and
that class members were not informed properly of the settlement.
Mr. Thut was accused of acting in concert with Mr. Bandas, a Texas
attorney not authorized to practice law in Illinois.
Mr. Bandas allegedly authored the objection by Stewart and passed
it to Mr. Thut, who filed it without review with the Cook County
Circuit Court.
Edelson attorneys said Mr. Bandas contacted them and requested
mediation offering to drop the objection if he and his client were
paid. The law firm agreed to pay $225,000 but later filed suit in a
Chicago federal court against Messrs. Thut and Bandas alleging
racketeering and extortion.
The racketeering charge was dismissed. The case remains pending,
and Mr. Bandas has now filed counterclaims against Mr. Edelson,
alleging fraud, conspiracy and breach of a confidentiality
agreement.
Stewart was found in contempt of court after failing to show up for
a hearing.
Justices looking into the case alleged that Messrs. Bandas, Thut
and Stewart had been involved in 15 other cases in which they
frivolously objected to court settlements to settle out of court.
Mr. DeMarino said the Illinois Appellate Court decision is
important because it seeks to deter serial objectors.
"Objectors have historically been major obstacles to class action
settlements," he said.
An objection period allowed during a class action suit is designed
to allow time to challenge a settlement that benefits a plaintiff's
counsel, but doesn't provide a suitable benefit to the class of
plaintiffs.
"Serial objectors abuse this process to hold a settlement hostage
until they are paid off," Mr. DeMarino explained.
The Illinois appellate decision, Mr. DeMarino said, is an
indication the courts are cracking down on such conduct.
"If the serial objectors continue with their M.O., we can expect to
see more decisions like this around the country," he said.
Justices ordered Cook County courts to reopen a hearing on the
matter and allow Edelson attorneys to introduce evidence. In
addition, they asked the Illinois Attorney Registry and
Disciplinary Commission to determine if disciplinary action should
be taken against Messrs. Thut and Bandas.
Mr. DeMarino said a further appeal in the Edelson class action case
is unlikely.
"The objector's attorneys will likely want the courts to forget
about this decision," he said. "Then again, this decision is so
damaging they may have no choice but to appeal particularly if they
plan to continue representing objectors." [GN]
GENCO I: April 2 Hearing on Final Approval of Ortiz Settlement
--------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order continuing hearing on Motion for Final
Approval Class Action Settlement in the case captioned ADAN ORTIZ,
Plaintiff, v. GENCO I, INC., Defendant, Case Nos. 16-cv-4601-YGR,
17-cv-03692-YGR (N.D. Cal.).
In light of the statements indicating that class members did not
receive notice and access to the settlement documents on the Class
Settlement Administrator's website as required by this Court's
Order Granting Preliminary Approval of Class Action Settlement, the
Court orders that the deadline for class members to submit requests
for exclusion, objections to the settlement, and Opt-In Claim Forms
is extended, and the final approval hearing currently set for
December 11, 2018, is continued as follows:
March 15, 2019 - NEW Postmark Deadline for Class Members to
submit any of the following to the settlement administrator: (1)
request for exclusion (2) objection to the settlement (3) Opt-In
Claim Form
April 2, 2019, 2:00 - Hearing on Motion for Final Approval of
Class p.m., Courtroom One, Action Settlement and Motion for
Attorney's Fees 1301 Clay Street, and Costs Oakland, California
A full-text copy of the District Court's November 29, 2018 Order is
available at https://tinyurl.com/yavwz8g8 from Leagle.com.
Adan Ortiz, on behalf of himself, all others similarly situtated
and the general public, Plaintiff, represented by Thomas Alistair
Segal -- thomas@setarehlaw.com -- Setareh Law Group & Chaim Shaun
Setareh -- shaun@setarehlaw.com -- Setareh Law Group.
Genco I, Inc., a Delaware corporation, Defendant, represented by
Jeremy T. Naftel -- jnaftel@cdflaborlaw.com -- Carothers DiSante &
Freudenberger LLP & Nicole A. Legrottaglie --
nlegrottaglie@cdflaborlaw.com -- Carothers DiSante Freudenberger
LLP.
GLAD PRODUCTS: Wallach and Starke Sue over Mislabeled Trash Bag
---------------------------------------------------------------
SHNEUR WALLACH; and ADAM STARKE, individually and on behalf of all
others similarly situated, Plaintiffs v. THE GLAD PRODUCTS COMPANY,
Defendant, Case No. 1:18-cv-06503-WFK-LB (E.D.N.Y., Nov. 15, 2018)
is an action against the Defendant for advertising, packaging and
selling unscented trash bags.
According to the complaint, the Defendant GLAD makes and sells
plastic trash bags, including "Tall Kitchen OdorShield and
ForceFlex" brand trash bags. GLAD's Unscented Trash Bags, in fact,
are not unscented, but rather, contain a scent to assist in the
OdorShield task of neutralizing malodors. GLAD violates Sections
349-350 of the NY Gen. Bus. Law by advertising, packaging and
selling Unscented Trash Bags, deceptively, pursuant to an Unscented
Claim.
The Glad Products Company manufactures bags and containers. It
offers trash bags, including kitchen bags, recyclable and
compostable bags, and bags for tough jobs and outdoors; and food
storage products, such as plastic food wraps, food containers, and
food bags. The company was incorporated in 1986 and is based in
Oakland, California. The Glad Products Company operates as a
subsidiary of The Clorox Company. [BN]
The Plaintiff is represented by:
Mark Schlachet, Esq.
LAW OFFICES OF MARK SCHLACHET
3515 Severn Road
Cleveland, OH 44118
Telephone: (216) 225-7559
Facsimile: (216) 932-5390
E-mail: markschlachet@me.com
GREENWICH RETAIL: Website not Accessible to Blind, Dennis Says
--------------------------------------------------------------
DERRICK U DENNIS, on behalf of himself and all others similarly
situated, the Plaintiffs, vs. GREENWICH RETAIL GROUP LLC, the
Defendant, Case No. 1:18-cv-07154 (E.D.N.Y., Dec. 16, 2018), seeks
to put an end to systemic civil rights violations committed by
Defendant against sight-impaired, disabled individuals, as is under
Title III of the Americans with Disability Act.
According to the complaint, the Plaintiff is a visually-impaired
and legally blind person who requires screen-reading software to
access and read website content using his computer. The Plaintiff
uses the terms "blind" or "visually-impaired" to refer to all
individuals with visual impairments who meet the legal definition
of blindness in that they have a visual acuity with correction of
less than or equal to 20/200. Some blind individuals who meet this
definition have limited vision. Others have no vision. Based on a
2010 U.S. Census Bureau report, approximately 8.1 million
individuals in the United States are visually impaired, including
2.0 million who are blind, and according to the American Foundation
for the Blind's 2015 report, approximately 400,000 visually
impaired persons live in the State of New York.
The Plaintiff commences this civil rights action against the
Defendants for the Defendants' failure to design, construct,
maintain, and operate its website to be fully accessible to and
independently usable by the Plaintiff and other similarly situated
blind or visually-impaired persons. The Defendants' denial of full
and equal access to its website, and therefore denial of its
products and services offered thereby and in conjunction with its
physical locations, is a violation of the Plaintiff's rights under
the ADA. Because the Defendants' website is not equally accessible
to blind and visually-impaired individuals, it violates the ADA,
the lawsuit says.[BN]
Attorneys for Plaintiff:
Jonathan Shalom, Esq.
SHALOM LAW, PLLC
E-mail: Jshalom@jonathanshalomlaw.com
124-04 Metropolitan Avenue
Kew Gardens, NY 11415
Telephone: (718) 971-9474
GREIF INC: Suit over Noxious Odor at Wisconsin Plant Ongoing
------------------------------------------------------------
Greif, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on December 20, 2018, for the
fiscal year ended October 31, 2018, that the company together with
Container Life Cycle Management (CLCM) continues to defend a
putative class action suit in Wisconsin concerning one of CLCM's
Milwaukee reconditioning facilities.
On November 8, 2017, the Company, Container Life Cycle Management
LLC (CLCM) and other parties were named as defendants in a putative
class action lawsuit filed in Wisconsin state court concerning one
of CLCM's Milwaukee reconditioning facilities.
The plaintiffs are alleging that odors from this facility have
invaded their property and are interfering with the use and
enjoyment of their property and causing damage to the value of
their property. Plaintiffs are seeking compensatory and punitive
damages, along with their legal fees.
Greif said, "The Company and CLCM are vigorously defending
themselves in this lawsuit. Since this lawsuit is at an early
stage, the Company is unable to predict the outcome of this lawsuit
or estimate a range of reasonably possible losses."
Greif, Inc. produces and sells industrial packaging products and
services worldwide. It operates in four segments: Rigid Industrial
Packaging & Services; Paper Packaging & Services; Flexible Products
& Services; and Land Management. The company was formerly known as
Greif Bros. Corporation and changed its name to Greif, Inc. in
2001. Greif, Inc. was founded in 1877 and is headquartered in
Delaware, Ohio.
GROUPON INC: Class Action Properly Moved Out of State Court
-----------------------------------------------------------
Perry Cooper, writing for BloombergLaw, reports that Groupon Inc.
didn't wait too long to move a class action out of state court, a
federal court ruled Dec. 4.
Groupon moved the suit as soon as it became clear from the
plaintiffs' amended motion for class certification that the federal
court had jurisdiction, Judge Ronald A. Guzmán wrote for the U.S.
District Court for the Northern District of Illinois.
Christine Dancel sued Groupon in state court on behalf of Illinois
residents whose Instagram images were used by Groupon. [GN]
HASS INTERESTS: Dimery Seeks Unpaid OT wages under FLSA
-------------------------------------------------------
KIRK DIMERY, Individually and On Behalf of All Others Similarly
Situated, the Plaintiff, vs. HASS INTERESTS, LLC d/b/a TEXAS
EXECUTIVE COURIERS, the Defendant, Case No. 4:18-cv-04725 (S.D.
Tex., Dec. 14, 2018), seeks to recover unpaid overtime wages under
the Fair Labor Standards Act of 1938.
According to the complaint, Texas Executive Couriers violated the
FLSA by employing Dimery and other similarly situated nonexempt
employees "for a workweek longer than forty hours [but refusing to
compensate them] for [their] employment in excess of [forty] hours
at a rate not less than one and one-half times the regular rate at
which [they are or were] employed."[BN]
Attorneys for Plaintiff:
Melissa Moore, Esq.
Curt Hesse, Esq.
Bridget Davidson, Esq.
MOORE & ASSOCIATES
Lyric Center
440 Louisiana Street, Suite 675
Houston, TX 77002
Telephone: (713) 222-6775
Facsimile: (713) 222-6739
HORTONWORKS INC: Faruqi & Faruqi Files Securities Class Action
--------------------------------------------------------------
Faruqi & Faruqi, LLP, on Dec. 5 disclosed that it has filed a class
action lawsuit in the United States District Court for the Northern
District of California, case No. 18-cv-06923, on behalf of
shareholders of Hortonworks, Inc. ("Hortonworks" or the "Company")
(NASDAQ: HDP) who have been harmed by Hortonworks' and its board of
directors' (the "Board") alleged violations of Sections 14(a) and
20(a) of the Securities Exchange Act of 1934 (the "Exchange Act")
in connection with the proposed merger of the Company with
Cloudera, Inc. ("Cloudera").
On October 3, 2018, the Board caused the Company to enter into an
Agreement and Plan of Merger ("Proposed Transaction") under which
each outstanding share of Hortonworks common stock will be
exchanged for 1.305 shares of Cloudera common stock (the "Merger
Consideration"). The shareholder vote on the Proposed Transaction
is expected to occur on December 28, 2018.
The complaint alleges that the Form S-4 Registration Statement (the
"S-4") filed with the Securities and Exchange Commission ("SEC") on
November 5, 2018, violates Sections 14(a) and 20(a) of the Exchange
Act because it provides materially incomplete and misleading
information about the Company and the Proposed Transaction,
including information concerning the Company's financial
projections and analysis, on which the Board relied to recommend
the Proposed Transaction as fair to Hortonworks shareholders.
If you wish to obtain information concerning this action, you can
do so by clicking here: www.faruqilaw.com/HDPnotice.
Take Action
Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with
extensive experience in prosecuting class actions, and significant
expertise in actions involving corporate fraud. Faruqi & Faruqi,
LLP, was founded in 1995 and the firm maintains its principal
office in New York City, with offices in Delaware, California,
Georgia, and Pennsylvania.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from December 5, 2018, the date of this notice.
Any member of the putative class may move the Court to serve as
lead plaintiff through counsel of their choice, or may choose to do
nothing and remain an absent class member. If you wish to discuss
this action, or have any questions concerning this notice or your
rights or interests, please contact:
Contacts:
FARUQI & FARUQI, LLP
Nadeem Faruqi, Esq.
James M. Wilson, Jr., Esq.
685 3rd Avenue, 26th Floor
New York, NY 10017
Telephone: (877) 247-4292 or (212) 983-9330
E-mail: faruqi@faruqilaw.com
jwilson@faruqilaw.com [GN]
ILLINOIS: Court Dismisses Transgender Women's Suit vs. IDOC
-----------------------------------------------------------
The United States District Court for the Southern District of
Illinois issued a Memorandum and Order granting Defendant's Motion
to Dismiss the case captioned JANIAH MONROE, MARILYN MELENDEZ EBONY
STAMPS, LYDIA HELENA VISION, SORA KUYKENDALL, and SASHA REED,
Plaintiffs, v. BRUCE RAUNER, JOHN BALDWIN, STEVE MEEKS, and MELVIN
HINTON, Defendants. No. 18-0156-DRH. (S.D. Ill.).
The Court adopts in part the Report and Recommendation (Report)
recommending that the Court grant defendant Bruce Rauner's motion
to dismiss and deny as moot a motion to stay discovery, grants
defendant Rauner's motion to dismiss, and denies as moot the motion
to stay discovery.
The Plaintiffs are prisoners in the custody of the Illinois
Department of Corrections (IDOC). Represented by counsel, they
bring this civil rights action pursuant to 42 U.S.C. Section 1983,
on behalf of themselves and other similarly situated inmates. The
Plaintiffs are currently in various institutions both within and
outside the Southern District of Illinois. The Plaintiffs identify
themselves as transgender women, and have sought evaluation and/or
treatment for gender dysphoria during their IDOC custody. They
allege that the IDOC has denied and/or delayed evaluation and
medically necessary treatment and accommodations for their gender
dysphoria, causing them to suffer physical and psychological
distress, including self-harm and suicide attempts.
Here, the plaintiffs object to the Report's recommendation that the
motion to dismiss be granted and to the extent that it is granted
that dismissal should be without prejudice, object to the Report's
finding of fact that characterizes plaintiffs' opposition as
Plaintiff opposes the motion, arguing that he is the very person
who can provide the full relief they seek and object to the
Report's conclusion of law that Plaintiffs' allegations against the
Governor are not robust or detailed enough to push them over the
line from possibility to plausibility and that Plaintiffs allege
systemic problems with delivery of care to transgender inmates but
do not tie such relief to the Governor's office and that the
Complaint fails to set forth what the Governor could conceivably do
to remedy the alleged constitutional violations above and beyond
the other named parties such that his inclusion in this lawsuit
appears superfluous.
In addition, the plaintiffs reiterate their prior arguments
countering the motion to dismiss. The Court rejects plaintiffs'
objections and arguments with the exception that dismissal will be
without prejudice instead of with prejudice.
There are no allegations suggesting that Governor Rauner personally
participated in any decision to deny plaintiffs medical care or,
for that matter, implemented any policy or custom, or practice that
resulted in a constitutional deprivation. Plaintiffs offer nothing
more than conclusory allegations that Ruaner has been aware and are
aware of all the deprivations complained of and have condoned or
been deliberately indifferent to such conduct. (Such allegations do
not satisfy the Twombly standard.
The Court finds that the Plaintiffs offer no other allegations
suggesting that Rauner was on notice that a particular policy,
custom, or widespread practice resulted in plaintiffs' denial of
care or that Rauner exhibited deliberate indifference toward them.
Further, the Court finds that the complaint does not establish that
Rauner would have any involvement in carrying out any injunctive
relief that is ultimately ordered. Put simply, plaintiffs have not
nudged their claims across the line from conceivable to plausible.
A full-text copy of the District Court's November 29, 2018
Memorandum and Order is available at https://tinyurl.com/ybfmswjs
from Leagle.com.
Janiah Monroe, Marilyn Melendez, Ebony Stamps, Lydia Helena Vision,
Sora Kuykendall & Sasha Reed, Plaintiffs, represented by John A.
Knight -- jknight@aclu-il.org -- Roger Baldwin Foundation of ACLU,
Inc., Austin B. Stephenson -- austin.stephenson@kirkland.com --
Kirkland & Ellis LLP, Catherine L. Fitzpatrick --
catherine.fitzpatrick@kirkland.com -- Kirkland & Ellis LLP, Erica
B. Zolner -- erica.zolner@kirkland.com -- Kirkland & Ellis LLP,
Ghirlandi Guidetti, Roger Baldwin Foundation of ACLU, Inc., Megan
M. New -- megan.new@kirkland.com -- Kirkland & Ellis LLP
Bruce Rauner, Defendant, represented by Christopher L. Higgerson,
Illinois Attorney General's Office, Kyle Rockershousen, Office of
the Attorney General & Lisa A. Cook, Office of the Attorney
General.
John Baldwin, Steve Meeks & Melvin Hinton, Defendants, represented
by Christopher L. Higgerson, Illinois Attorney General's Office,
Joseph E. Okon, Illinois Attorney General's Office, Kyle
Rockershousen, Office of the Attorney General & Lisa A. Cook,
Office of the Attorney General.
INDEPENDENCE, MO: IPL Customers Sue Over Billing Issues
-------------------------------------------------------
Jessica McMaster, writing for KSHB, reports that a class action
lawsuit has been filed against the city of Independence over
billing issues.
The lawsuit, filed on Dec. 3 on behalf of Independence Power &
Light customers, claims the city and IPL overcharged customers for
their electricity consumption.
The Accurso Law Firm filed the lawsuit, which also claims city
officials and IPL failed to address customer concerns: "Customers
are still receiving electric bills that are disproportionally high.
After the new billing system came into effect, thousands of IPL
customers have seen their electric bills increase dramatically. "
Mayor Eileen Weir was served on behalf of the city and IPL, which
switched to a new billing system in May.
The 41 Action News investigators reached out to city spokeswoman
Meg Lewis about the lawsuit's allegations. She said the city cannot
comment on pending litigation.
Andy Boatright, former director of IPL, is also listed as a
defendant in the lawsuit. He said he wasn't aware of the lawsuit
when reached by 41 Action News.
After being provided a copy of the lawsuit, 41 Action News asked
for comment, but Mr. Boatright has yet to respond.
IPL has 56,000 customers, nearly one-third of which have past due
accounts, according to Zach Walker, city manager for
Independence.
Residents have complained about increasing utility bills since last
spring when the billing system changed.
Lucy Young, a former Independence city council member, said her
rates were so high in the summer she couldn't afford to run central
air.
"I have a flannel sheet and blankets in all my windows," Ms. Young
told 41 Action News in August. "I shut all the vents. I shut all
the registers. I shut the doors. I sleep downstairs so that it's
cooler and takes less utilities and I keep my thermostat at 81."
Ms. Young said she felt fortunate because she receives Social
Security payments that help her get by, but she worries everyone
isn't getting the help they need.
"I'm not the only one doing this," Ms. Young said. "What's really
upsetting to me are the people that don't have Social Security to
depend on."
Some city council members expressed concern last month about
decisions being made on behalf of city leaders that they believe
also have a negative impact on utility rates.
Last year, a majority of the city council hired a company to buy,
demolish and remediate the city's old power plant, located in
Missouri City.
Weir, council members Curt Dougherty, Tom Van Camp, John Perkins
and Chris Whiting all voted to select the high-bidder for the job,
a decision that didn't sit well with council members Karen DeLuccie
and Scott Roberson, who voted against hiring the more expensive
company.
"To this day, I do not understand that decision, because that was
not a good business decision," Ms. DeLuccie said.
The selected company bid the project at $8.9 million dollars.
Records from the city show another company offered to do the work
for half the price.
The final contract eventually was awarded to the higher bidder for
an estimated cost of $9.7 million.
"I honestly do not know why that decision was made," Roberson said.
"There was no reason for us to spend any money. (The Environmental
Protection Agency) was not requiring us to do anything."
A previous 41 Action News investigation revealed discussions about
the deal took place behind closed doors between city leaders and a
man who several years ago went to prison for bribing a city
councilman, which raises even more concerns for Ms. DeLuccie.
"I don't doubt for a minute there's something going on,"
Ms. DeLuccie said.
Garland Land, who serves on the city's Public Utility Advisory
Board and also has criticized the deal, said decisions like the
Missouri City demolition deal have a direct impact on utility
rates.
The city used funds from IPL to pay for the project.
"They awarded the contract to the high bidder, which was twice as
much, about $5 million more than the low bidder," Land said. "We
could not find the basis for making that decision."
The lawsuit also lists CONSTELLATIONS SOFTWARE, N. Harris Computer
Corporation and Advanced Utility Systems as defendants.
According to the petition, "Similar issues have occurred in other
jurisdictions with N. Harris Computer Corporation and Advanced
Utility Systems."
Mr. Walker said the city is currently cutting off power to
businesses that are delinquent on their utility payments.
The city will begin to cut off power to residents after Christmas.
However, Mr. Walker said the city has a "cold weather rule," which
means the city will not shut of utilities for residents when
temperatures are below 32 degrees.
Ms. Young said city leaders must find a way to help residents.
"We don't want a handout, we want a hand up," Ms. Young said. "By
God, the city manager, IPL, they need to look at us as human
beings." [GN]
INMATE SERVICES: Hall Sues to Recover Unpaid Overtime, Last Pay
---------------------------------------------------------------
Christina Hall, individually and on behalf of all others similarly
situated, v. Inmate Services Corporation and Randy Cagle, Jr., Case
No. 18-cv-00235, (E.D. Ark., December 5, 2018) seeks monetary
damages, liquidated damages, prejudgment interest, costs, including
reasonable attorneys' fees as a result of Defendants' failure to
pay lawful overtime compensation for hours worked in excess of
forty hours per week under the Fair Labor Standards Act and the
Arkansas Minimum Wage Act.
Inmate Services Corporation's primary business purpose is to
provide prisoner transportation, transporting prisoners to jails
and prisons across the United States. Hall worked as an extradition
agent from approximately June of 2018 until November of 2018. She
claims to have regularly worked in excess of forty hours per week
without overtime pay. Defendants have yet to pay to Plaintiff her
last paycheck after her employment with Defendants was terminated
on November 20, 2018, the complaint relates. [BN]
Plaintiff is represented by:
Josh Sanford, Esq.
Chris Burks, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 S. Shackleford Road, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
Email: josh@sanfordlawfirm.com
chris@sanfordlawfirm.com
daniel@sanfordlawfirm.com
INTERNATIONAL LASER: Alvarado Suit Alleges FLSA Violations
----------------------------------------------------------
Josue Alvarado, on behalf of himself and all other persons
similarly situated, known and unknown v. International Laser
Products, Inc. and International Toner Corp., Case 1:18-cv-07756
(N.D. Ill., November 21, 2018), is brought against the Defendants
for violations of the Fair Labor Standards Act and the Illinois
Minimum Wage Law.
The Plaintiff alleges that the Defendants failed to pay overtime
wages to the Plaintiff and other similarly-situated persons.
The Plaintiff worked as an hourly employee for the Defendants from
February 2018 until September 4, 2018.
The Defendant ITC is a Standardized Test Methods Committee
certified manufacturer, distributor, and recycler of toner
cartridges and related imaging supplies. ITC is located at 1081
Johnson Drive, Buffalo Grove, IL 60089.
The Defendant ILP is a contract re-manufacturer and global
distributor of laser, fax and copier cartridges, exclusively for
resale. ILP is located at 1081 Johnson Drive, Buffalo Grove, IL
60089.
ILP and ITC operate as a unified operation and a common enterprise,
with a common business purpose. [BN]
The Plaintiff is represented by:
Douglas M. Werman, Esq.
Maureen A. Salas, Esq.
Sarah J. Arendt, Esq.
WERMAN SALAS, P.C.
77 West Washington, Suite 1402
Chicago, IL 60602
Tel: (312) 419-1008
E-mail: dwerman@flsalaw.com
msalas@flsalaw.com
sarendt@flsalaw.com
KIMBERLY DERSTINE: Logan Seeks Minimum & OT Wages
-------------------------------------------------
SAHARA LOGAN, on behalf of herself and all others similarly
situated, Plaintiff, v. KIMBERLY DERSTINE, individually and d/b/a
SABEL'S SHOWBAR a/k/a GASLIGHT PUB a/k/a SABEL'S GASLIGHT PUB,
BRANDEVJOR, INC.,, an unknown business entity d/b/a SABEL'S
SHOWBAR a/k/a GASLIGHT PUB a/k/a SABEL'S GASLIGHT PUB, and DOE
DEFENDANTS 1-10, the Defendants, Case No. 2:18-cv-05333-GAM (E.D.
Pa., Dec. 10, 2018), seeks to recover unpaid wages, including
minimum wage and premium overtme compensation for all hours worked
in excess of 40 in a given work week, pursuant to the Fair Labor
Standards Act of 1938, the Pennsylvania Minimum Wage Act, and the
Pennsylvania Wage Payment and Collection Law.
According to the complaint, under applicable employment laws all
employees are entitled to a defined minimum wage and premium
overtime compensation for all hours worked in excess of forty in a
given work week (unless the employee is determined to be exempt),
and are protected from having improper deductions taken from their
wages, including their tips. However, Defendant improperly
classified Plaintiff and other exotic entertainers as "independent
contractors." Consequently, Defendants failed to pay Dancers at
least the applicable minimum wage. In addition, Defendants required
Dancers to work in excess of forty hours per work week, and then
failed to pay them premium overtime compensation. Further,
Defendant improperly collected a portion of the tips Plaintiff and
other Dancers receive from customers.
The complaint notes that dancers who work, or have worked, for
Defendant, including Plaintiff and her current and former
co-workers, work in an "unorganized" industry where many workers
are "disenfranchised" by the wide disparities in bargaining power
between workers and club owners. Accordingly, adult entertainment
clubs such as those operated by Defendants are well-positioned to
take advantage of Dancers and routinely deny them basic workplace
rights. Over the past two decades, the United States Department of
Labor and courts across the country have recognized that Dancers
are employees, not independent contractors, and thus entitled to
protection under various state and federal wage and hour laws.
Despite these significant strides, adult night clubs across the
country still routinely deny Dancers the basic protections they are
accorded under state and federal law. Indeed, Defedant's Club is no
exception, the lawsuit says.
Gaslight Pub is a street level bar at durgin-park restaurant
serving draft beers, specialty cocktails, and craft.[BN]
The Plaintiff is represented by:
Gary F. Lynch, Esq.
R. Bruce Carlson, Esq.
Edward Ciolko, Esq.
CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322 9243
Facsimile: (412) 231 0246
E-mail: glynch@carlsonlynch.com
bcarlson@carlsonlynch.com
eciolko@carlsonlynch.com
KYC INSURANCE: Abante Rooter Sues over Unwanted Telephone Calls
---------------------------------------------------------------
ABANTE ROOTER AND PLUMBING, INC., individually and on behalf of all
others similarly situated, the Plaintiff, vs. KYC INSURANCE
SERVICES, LLC; DOES 1 through 10, inclusive, the Defendants, Case
No. 4:18-cv-07543-DMR (N.D. Cal., Dec. 14, 2018), seeks damages and
any other available legal or equitable remedies resulting from the
illegal actions of Defendant, in negligently, knowingly, and/or
willfully contacting Plaintiff on his cellular telephone in
violation of the Telephone Consumer Protection Act, thereby
invading Plaintiff's privacy and causing him to incur unnecessary
and unwanted expenses.
According to the complaint, beginning in or around February 2015,
Defendant contacted the Plaintiff on Plaintiff's cellular telephone
ending in -1636, in an effort to sell or solicit its services. The
Defendant called, including but not limited to around February 13,
2015 at 4:49 p.m. Defendant called from telephone numbers
including, but not limited to (562) 473-4086. The Defendant used an
"automatic telephone dialing system", as defined 23 by 47 U.S.C.
section 227(a)(1) to place its calls to Plaintiff seeking to sell
or solicit its business services.
The Plaintiff is not a customer of the Defendant's services and has
never 3 provided any personal information, including his cellular
telephone number, to the Defendant for any purpose whatsoever. In
addition, on at least one occasion, the Plaintiff answered the
telephone and told Defendant to stop calling. Accordingly, the
Defendant never received Plaintiff's "prior express consent" to
receive calls using an automatic telephone dialing system or an
artificial or prerecorded voice on her cellular telephone pursuant
to 47 U.S.C. section 227(b)(1)(A), the lawsuit says.[BN]
Attorneys for Plaintiff:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Telephone: 323 306-4234
Facsimile: 866 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
LAKE POINTE, NC: Former Resident Files Class Action
---------------------------------------------------
Chelsea Donovan, writing for WECT, reports that a former resident
of a Columbus County assisted living facility closed by the state
two months ago has filed a class action lawsuit alleging the
facility's owners intentionally breached their contractual
obligation to take care of their residents.
The N.C. Division of Health Service Regulation, a division of the
N.C. Department of Health and Human Services, suspended Lake Pointe
Assisted Living's license Oct. 17 after an investigation found
"evidence of neglect and failure to protect residents from
potential harm that presents an imminent danger to the health and
welfare of residents in the home," state documents show.
Officials say the facility's residents were shuttled to other
locations following Lake Pointe's closure.
The lawsuit, filed on Nov. 28 by a woman who lived in the facility
from May to October, seeks to recover damages in excess of $25,000.
The facility's owners, Tony and Edith Bigler, of Fayetteville, are
named as defendants.
"This class action arises out of defendants' failure to materially
comply with the terms of their contractual promises to plaintiff
and the class members to (1) provide assistance with eating,
walking, dressing, bathing, personal grooming, and ambulating and
to provide appropriate supervision on a 24-hour basis, (2) provide
care and services which were adequate, appropriate, and in
compliance with relevant federal and state laws and rules and
regulations and (3) provide personal care service (PCS) hours equal
to the number of approved PCS hours," former Lake Pointe Assisted
Living resident Martha Reinert's complaint states.
Class members are defined as "all persons who were residents of
Lake Pointe Assisted Living from Dec. 1, 2014 through the present,"
according to the lawsuit.
The lawsuit specifically points to staffing issues, claiming the
facility intentionally staffed Lake Pointe at levels "that would
make it impossible" to provide services it had contractually agreed
to provide.
The suit also references Lake Pointe's numerous prior violations
issued by the state as evidence of the Bigler's failure to comply
with their contractual promises.
"Defendants' unfair trade practices have directly and proximately
caused Plaintiff and the Class Members' damages in an amount in
excess of $25,000, said amount to be proven at the trial of this
action," the lawsuit states.
The state's investigation began when another resident, 64-year-old
Jerry Singletary, called the DHHS on Oct. 14.
"If I hadn't got it started, I don't know what would happen,"
Singletary said in October. "I didn't really realize how bad it was
until I experienced coming here." [GN]
LOG CREEK: Leopard Sues Over Unpaid Overtime Premiums
-----------------------------------------------------
Bobby Dean Leopard, individually and on behalf of similarly
situated consenters, Plaintiff, v. Log Creek Logging, Inc. and Theo
R. Williams, individually, Defendants, Case No. 8:18-cv-03451-DCC
(S.D. S.C., December 14, 2018) is an action against Defendants for
their violations of the Fair Labor Standards Act and the South
Carolina Payment of Wages Act.
Plaintiff has been employed as a skidder operator on a logging crew
for more than 3 years. During the past three years, Plaintiff and
other Consenters of the logging crews were not paid overtime for
time worked in excess of 40 hours per week. The Plaintiff and the
other Consenters were required to work a minimum of 48 hours per
week, often more, but were only paid for 40 hours per week, notes
the complaint.
Defendant Williams controlled Defendant Log Creek and the
compensation of its employees and was aware that these practices
were prohibited by law. These practices were done at the direction
of Defendant Williams, the complaint asserts.
Moreover, the Defendants failed and continue to fail to accurately
record, report, and/or preserve accurate records of Plaintiff and
the other Consenters regarding their wages, hours, and conditions
and practices of employment, in contravention of the FLSA, says the
complaint.
Plaintiff is a citizen and resident of Saluda County and is a
member of a logging crew employed by Defendants.
Log Creek Logging, Inc. is a for-profit corporation organized under
the laws of the State of South Carolina with its principal place of
business in Edgefield, South Carolina.
Theo R. Williams is an individual citizen and resident of Edgefield
County, South Carolina.[BN]
The Plaintiff is represented by:
Richard C. Detwiler, Esq.
George A. Taylor, Esq.
CALLISON TIGHE & ROBINSON, LLC
P.O. Box 1390
Columbia, SC 29202
Phone: 803-404-6900
Facsimile: 803-404-6901
Email: RickDetwiler@CallisonTighe.com
GeorgeTaylor@CallisonTighe.com
LOMA NEGRA: Feb. 4 Lead Plaintiff Motion Deadline Set
-----------------------------------------------------
Pomerantz LLP on Dec. 5 disclosed that a class action lawsuit has
been filed against Loma Negra Compania Industrial Argentina SA
("Loma Negra" or the "Company") (NYSE: LOMA), its former
controlling shareholder, and certain of its officers and board
members (collectively, the "Defendants"). The class action, filed
in United States District Court, Southern District of New York, and
indexed under 18-cv-11323, is on behalf of a class consisting of
all persons and entities, other than Defendants and their
affiliates, who purchased or otherwise, acquired Loma Negra
American Depositary Shares ("ADS") pursuant or traceable to the
F‑1 registration statement, incorporated in pari materia F-6
registration statement, and related prospectus (collectively, the
"Registration Statement") issued in connection with Loma Negra's
November 2017 initial public stock offering (the "IPO" or
"Offering").
If you are a shareholder who purchased Loma Negra ADS pursuant or
traceable to the company's registration statement and IPO, you have
until February 4, 2019, to ask the Court to appoint you as Lead
Plaintiff for the class. A copy of the Complaint can be obtained
at www.pomerantzlaw.com. To discuss this action, contact Robert
S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
Loma Negra is a South American manufacturer and distributor of
cement, concrete, and other building materials. Headquartered in
Buenos Aires, Argentina, Loma Negra's ADS are listed on the New
York Stock Exchange ("NYSE") under the ticker symbol "LOMA."
In November 2017, Defendants commenced Loma Negra's initial public
offering ("IPO"), issuing approximately 53.5 million ADS to the
investing public at $19 per share, all pursuant to the Company's
Registration Statement.
The Registration Statement contained untrue statements of material
fact and omitted to state material facts both required by governing
regulations and necessary to make the statements made not
misleading. Foremost, the Registration Statement downplayed and
misrepresented Loma Negra's exposure to a massive, ongoing
corruption scandal engulfing its majority owner, InterCement
Participações S.A. The Registration Statement further
misrepresented a purported increased demand for Loma Negra's cement
and other products as a result of economic growth and government
funding for public works projects in Argentina, as well as the
purported benefits to Loma Negra from that increased demand. The
Registration Statement also misrepresented events and trends in the
Argentinian economy, as well as Loma Negra's exposure thereto.
Finally, the Registration Statement contained many references to
known risks that "if" occurring "might" or "could" affect the
Company, despite the fact that these "risks" had already
materialized at the time of the IPO.
Loma Negra and the other Defendants went forward with the IPO with
the foregoing misrepresentations and omissions in the Registration
Statement. With these misrepresentations and omissions, the IPO
was extremely lucrative for Defendants, who raised more than $1
billion in gross proceeds. When the truth of Defendants'
misrepresentations and omissions became known, the price of Loma
Negra shares suffered sharp declines.
By the commencement of this action, Loma Negra ADS traded below $11
per share, a decline of more than 40% from the offering price.
With offices in New York, Chicago, Los Angeles, and Paris, The
Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its
practice in the areas of corporate, securities, and antitrust class
litigation. Founded by the late Abraham L. Pomerantz, known as the
dean of the class action bar, the Pomerantz Firm pioneered the
field of securities class actions. Today, more than 80 years later,
the Pomerantz Firm continues in the tradition he established,
fighting for the rights of the victims of securities fraud,
breaches of fiduciary duty, and corporate misconduct. The Firm has
recovered numerous multimillion-dollar damages awards on behalf of
class members. [GN]
LOUIS BERGER: Ojeda Seeks Overtime Wages for Mechanics
------------------------------------------------------
IVAN OJEDA, individually and on behalf of all others similarly
situated, the Plaintiff, vs. LOUIS BERGER GROUP (DOMESTIC), INC.,
KENNETT CONSULTING, LLC, and KALLBERG INDUSTRIES, LLC, the
Defendants, Case No. 2:18-cv-17233 (D.N.J., Dec. 14, 2018), seeks
to recover unpaid overtime wages and other damages under the Fair
Labor Standards Act of 1938, and the Puerto Rico Wage Payment
Statute.
According to the complaint, the Plaintiff and the other workers
like him regularly worked for Defendants as mechanics in excess of
40 hours each week. The Defendants allegedly failed to properly
compensate Plaintiff and all other similarly situated workers. When
these workers were paid a day rate, they were not paid overtime.
When they were paid hourly, the Defendants failed to properly
calculate their rate of pay, by failing to include all remuneration
received, thereby depriving them of the appropriate rate of
overtime pay. The Defendants also improperly classified Plaintiff
and those similarly situated as independent contractors.
Louis Berger is a global professional services corporation helping
infrastructure and development clients solve their most complex
challenges.[BN]
Attorneys for Plaintiff:
Joseph A. Fitapelli, Esq.
Dana M. Cimera, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street, 30th Floor
New York, NY 10005
Telephone: (212) 300-0375
- and -
Michael A. Josephson, Esq.
Andrew Dunlap, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: 713 352 1100
Facsimile: 713 352 3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
S.D. Tex. ID No. 21615
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
LYFT INC: Must Face Class Action Over ADA Violations
----------------------------------------------------
Finkelstein & Partners, LLP on Dec. 5 disclosed that United States
District Judge Nelson S. Roman has denied Lyft, Inc.'s attempts to
dismiss Americans with Disabilities Act (ADA) and New York State
Human Rights Law claims against the popular ride sharing company.
The class action law firm of Finkelstein, Blankinship Frei-Pearson
& Garber (FBFG) represents Plaintiffs Harriet Lowell and
Westchester Disabled on the Move, Inc. (WDOMI) in this putative
reform class action.
Class action law firm Finkelstein, Blankinship Frei-Pearson &
Garber if fighting popular ride-sharing company Lyft on behalf of
people with disabilities to be given the same access to the
convenience of ride-sharing that Lyft offers to the general
public.
Mrs. Lowell resides in White Plains, New York and typically uses a
motorized scooter to travel. To assist her in travel throughout
Westchester County and in her regular medical appointments in New
York City, Mrs. Lowell would like to use Lyft's transportation
services; however, the company does not make wheelchair accessible
vehicles (WAVs) available in Westchester County. Because Lyft does
not offer WAVs, Mrs. Lowell's husband must regularly take time off
from work to drive Mrs. Lowell to her medical appointments.
Plaintiff WDOMI is a Yonkers-based nonprofit, run largely by
individuals with disabilities, that operates as an independent
living center for individuals with disabilities. WDOMI's mission
includes "empower[ing] people with disabilities to control their
own lives, advoca[ting] for civil rights and a society free of
barriers to people with disabilities" and "ensuring that people
with mobility disabilities are able to effectively use the
transportation services they require." On behalf of WDOMI, FBFG
alleges that Lyft "pervasively and systematically" excludes people
with mobility disabilities from its convenient transportation
services and that members of WDOMI "have been and will be injured"
because of Lyft's unfair practices.
Lead counsel Jeremiah Frei-Pearson noted, "Lyft tried to dismiss
this case, but Judge Roman ruled that Lyft's arguments seem
'supremely unjust.' We agree with Judge Roman and look forward to
continuing to fight for Ms. Lowell, WDOMI and all people with
disabilities until they obtain the same access to the convenience
of ride-sharing that Lyft offers to the general public."
Melvyn R. Tanzman, Executive Director of WDOMI, stated, "We are
pleased that Judge Roman's decision will give people with
disabilities the opportunity to end discrimination in
transportation services. Lyft and other similar transportation
providers must provide services for all, including individuals who
cannot transfer from their wheelchairs to a vehicle. Excluding a
person due to her or his limitations is discrimination, plain and
simple."
The lawyers at Finkelstein, Blankinship, Frei-Pearson & Garber are
deeply committed to helping regular people who have been wronged by
powerful corporations. To learn more, visit the firm's website at
www.4classaction.com/ or call 1-844-431-0695. [GN]
LYFT INC: NY Court Narrows Claims in Lowell ADA Suit
----------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order granting in part and denying in
part Defendant's Motion to Dismiss the amended complaint in the
case captioned HARRIET LOWELL and WESTCHESTER DISABLED ON THE MOVE,
INC., individually and on behalf of all others similarly situated,
Plaintiffs, v. LYFT, INC., Defendant. No. 17-cv-6251 (NSR).
(S.D.N.Y.).
Plaintiffs Harriet Lowell and Westchester Disabled on the Move,
Inc. (WDOMI), on behalf of themselves and all others similarly
situated, bring this putative class action against Defendant Lyft,
Inc. The Plaintiffs assert claims under Title III of the Americans
with Disabilities Act (ADA), New York State Human Rights Law
(NYSHRL) and New York City Human Rights Law (NYCHRL).
The Defendant moves to dismiss the Plaintiffs' Amended Complaint
due to lack of standing, the existence of an arbitration agreement
in Defendant's terms of Service, and the Plaintiffs' failure to
state a claim.
The Defendant's motion to dismiss the Plaintiffs' NYCHRL claim is
granted and the Defendant's motion to dismiss Plaintiff WDOMI's
NYSHRL claim is granted. The Defendant's motion to dismiss
Plaintiffs' ADA claims and Plaintiff Lowell's NYSHRL claim is
denied.
According to the Court, the Plaintiffs satisfy each element of an
ADA claim based on the face of the Amended Complaint. First, they
meet the first element of an ADA claim by plausibly alleging that
they are individuals with disabilities within the meaning of the
ADA. Plaintiffs also satisfy the second element for the purposes of
this motion to dismiss, that Defendant operates a public
accommodation. The Defendant disputes that it is a public
accommodation in the business of transportation and a covered
entity under Title III of the ADA, but Defendant acknowledges that
Plaintiffs allege it is a transportation company and that the Court
is required to accept Plaintiffs' allegations as true for the
purpose of the motion to dismiss.
The Amended Complaint states that Defendant operates a public
accommodation. If Plaintiffs' statements on the face of the Amended
Complaint were not sufficient, the Court would still be unable to
grant Defendant's motion to dismiss on the issue of whether
Defendant is a public accommodation. It is premature to decide the
question of whether a defendant is a public accommodation at the
motion to dismiss phase.
Therefore, the Court will consider Defendant to be a covered entity
under Title III of the ADA for the purposes of this motion and
finds that Plaintiffs have satisfied the second prong of the ADA
analysis.
Thus, Plaintiffs' ADA claim survives Defendant's motion to dismiss,
assuming Defendant also argues that Plaintiffs failed to plead a
plausible ADA claim, because the Amended Complaint contains
sufficient facts to plausibly support each element of that claim.
Claims under the NYSHRL are analyzed using the same standards that
apply to the ADA. Accordingly, the three element test articulated
in the Court's ADA analysis applies here. As stated supra, for the
purposes of this motion, there is no dispute that Plaintiffs are
disabled within the meaning of the ADA or that Plaintiffs have
plausibly alleged that Defendant is a public accommodation.
Additionally, the Amended Complaint contains sufficient facts to
plausibly support Plaintiffs' claim that Defendant discriminated
against them by denying them a full and equal opportunity to enjoy
its ridesharing services.
Because Plaintiffs have stated a facially plausible claim for each
of the required elements, Defendant's motion to dismiss the NYSHRL
claim is denied.
Under NYCHRL, it is unlawful for any owner of a place or provider
of public accommodation to deny an individual full and equal
enjoyment, on equal terms and conditions, of accommodations or
services based on an individual's disability. Unlike in
Westchester County, Defendant offers WAVs in New York City. The
issue is, according to Plaintiffs, that there are long wait times
for WAVs in New York City for those individuals requiring WAVs
because Defendant does not provide enough such vehicles.
There is no case law to indicate that extended wait times for a
public accommodation is a NYCHRL violation. While it is a NYCHRL
violation to entirely exclude a person with a disability from
accessing a public accommodation, that is not the situation before
the Court. Defendant offers, albeit in a small number, WAVs in New
York City. Analyzing Plaintiffs' NYCHRL claims separately, and
construing the provisions broadly, the Court finds that Plaintiffs
failed to state a facially plausible claim under the NYCHRL because
they did not plausibly allege a NYCHRL violation.
A full-text copy of the District Court's November 29, 2018 Opinion
and Order is available at https://tinyurl.com/y84at6x2 from
Leagle.com.
Harriet Lowell, individually and on behalf of all others similarly
situated, Lead Plaintiff, represented by Andrew Charles White --
awhite@fbfglaw.com -- Finkelstein, Blankinship, Frei-Pearson &
Garber, LLP, Chantal Khalil -- ckhalil@fbfglaw.com -- Finkelstein,
Blankinship, Frei-Pearson & Garber, LLP & Jeremiah Lee Frei-Pearson
-- jfrei-pearson@fbfglaw.com -- Finkelstein Blankinship, Frei-
Pearson & Garber, LLP.
Westchester Disabled On The Move, Inc., Plaintiff, represented by
Andrew Charles White, Finkelstein, Blankinship, Frei-Pearson &
Garber, LLP & Jeremiah Lee Frei-Pearson, Finkelstein Blankinship,
Frei- Pearson & Garber, LLP.
Lyft, Inc., Defendant, represented by Sara Lynn Shudofsky --
michael.lynn@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP &
Harry Kinsler Fidler -- harry.fidler@arnoldporter.com -- Arnold &
Porter Kaye Scholer LLP.
National Council on Independent Living & Center for Disability
Rights, Inc., Amicuss, represented by Kathryn Elizabeth Carroll --
kcarroll@cdrnys.org -- Center For Disability Rights, Inc.
MARRIOTT INT'L: Stays Mum on Data Breach Class Actions
------------------------------------------------------
Irina Ivanova, writing for CBS News, reports that two class-action
lawsuits already have been filed against Marriott after the hotel
chain revealed a massive breach of its systems that compromised 500
million customers. One of the suits is seeking billions in damages.
And many more are on the way, according to industry experts.
Lawyers in Oregon filed a class-action lawsuit on Nov. 30 on behalf
of David Johnson, a lawyer, and Chris Harris, a business owner.
Johnson had noticed unauthorized purchases on his credit card
recently and believes it was due to the hack, according to Michael
Fuller, an attorney for the plaintiffs. (Mr. Harris reportedly had
to replace a credit card he had used at a Marriott.) A Baltimore
law firm also filed suit.
The hotel company's breach was revealed thanks to Europe's recently
enacted privacy law, known as GDPR, under which Marriott could owe
up to $912 million in fines for the breach.
The U.S. doesn't have a similarly broad privacy law, although some
types of data are protected. That means lawyers for Marriott's U.S.
customers will have to show their clients were hurt and that it was
Marriott's fault.
"We have to use the same law you would have used if your stagecoach
got broken into 200 years ago," Fuller quipped.
Mr. Fuller has received a dozen inquiries since Nov. 30 complaining
of either suspicious activity or an increase in spam, he told CBS
MoneyWatch. The suit seeks up to $12.5 billion in damages -- or $25
for each customer who was affected. That covers "just the
inconvenience of going to fix their credit, get a new credit card,
and so forth," he said.
"This is a company that knows to invest in state-of-the-art
marketing, state-of-the-art reservations … at the same time, it
does not appear they went to the same level of investment
protecting the information that they work so hard to get you to
give them," said Hassan Murphy, managing partner at Murphy Falcon &
Murphy, which filed the lawsuit in Maryland.
Marriott declined to comment on the lawsuits. Data-protection
experts note the unusually broad extent of the company's breach,
which revealed names, addresses, passport numbers, dates of birth,
credit card information and travel details of at least 327 million
people, and less sensitive information for up to 500 million. (The
U.S. has about 329 million residents.)
"When you look at a breach like this, and especially the amount of
time the hackers had access to the data, there's probably a case to
be made that there's some accountability to the company. There's a
delay in identifying the problem," said Neill Feather, CEO of
SiteLock.
"Once the attackers have made their way in and infiltrated a
network, they're financially motivated to stay hidden," he added.
Marriott also said that while some of the data was encrypted, it's
possible hackers could have accessed the key to decrypt it, a
situation that CNET senior producer Dan Patterson likened to
"locking the door to your house but then giving out the key."
Marriott also suffered a cyberattack in 2015 that exposed
customers' credit card numbers. While the hotel said the 2015
incident wasn't related to the one it just disclosed, cybersecurity
experts said Marriott should have learned from its earlier
experience. Oregon attorney Fuller argued that the 2015 incident
should have alerted Marriott it was a hacking target and caused it
to take precautions.
It can take years for victims to see any money after a breach,
especially one with hundreds of millions of victims. Lawsuits
stemming from Equifax's loss of 145 million customers' data last
year are still ongoing. Some victims of that breach have also had
success suing Equifax in small-claims court.
For many companies whose customer data gets breached, the penalties
come in the form of damaged reputations, crushed stock prices or
lost business. A report from the Ponemon Institute last year found
that companies see a 5 percent stock drop, on average, after they
report a data breach. (Equifax's stock is currently trading about
10 percent below its pre-breach level.) Yahoo, which holds the
distinction for the biggest data breach of all time, by number of
victims, saw its value cut by $350 million in its subsequent sale
to Verizon.
"Data breaches are a very real business risk with bottom-line
concerns," said Tim Steinkopf, president of Centrify, a data
security firm.
Still, Marriott likely has the business resources (if not the
technical ones) to weather a breach. It's worse for small
businesses, which often lack the cash reserves to hold on during
the long-term dip in business that follows. According to SiteLock's
Feather, 60 percent of small businesses that experience a data
breach eventually go bust because of it. [GN]
MARRIOTT INTERNATIONAL: Cottrell Sues Over Data Breach
------------------------------------------------------
John Cottrell, Brent McArthur, Sheila Coughlin, Torri A. Gaines,
Sara Schauer, John Scribner, Edward Twine, and Martha Cebrian Vega
individually and on behalf of all others similarly situated
Plaintiffs, v. Marriott International, Inc., Defendant, Case No.
8:18-cv-03892-GJH (D. Md., December 17, 2018) is a data breach
class action brought on behalf of approximately 500 million people
whose personal information was exposed due to a flaw in Marriott's
guest reservation database systems dating back to 2014, which
allowed hackers to take over guests' accounts and access personal
information.
On November 30, 2018, Marriott announced that there was a data
security incident involving the Starwood guest reservation
database. The Marriott Data Breach allowed unauthorized access to
guest information relating to reservations at Starwood properties
on or before September 10, 2018. The unauthorized party copied and
encrypted information from the Starwood guest reservation system
and took steps towards removing it. The database contained
information on up to approximately 500 million guests who made a
reservation at a Starwood property.
For approximately 327 million of those guests, the information
includes some combination of name, mailing address, phone number,
email address, passport number, Starwood Preferred Guess ("SPG")
account information, date of birth, gender, arrival and departure
information, reservation date, and communication preferences
(collectively, "PII"). Moreover, for some users, the information
also includes payment card numbers and payment card expiration
dates, although the payment card numbers were encrypted although it
is possible that these card numbers were decrypted. For the
remaining guests, information accessed was limited to name and
sometimes other data such as mailing address, email address or
other information.
The Defendant's conduct, failing to take adequate and reasonable
measures to ensure their data systems were protected, failing to
take available steps to prevent and stop the breach from ever
happening, failing to disclose to Marriott customers the material
facts that they did not have adequate computer systems and security
practices to safeguard customers' PII, and failing to provide
timely and adequate notice of the Marriott Data Breach -- has
caused substantial consumer harm and injuries to consumers across
the United States. As a result of the Marriott Data Breach,
numerous individuals whose PII were contained in the Starwood guest
reservation database have been exposed to fraud and these
individuals have been harmed, says the complaint.
Plaintiffs seek to remedy these harms, and prevent their future
occurrence, on behalf of themselves and all similarly situated
individuals whose personal information was compromised as a result
of the Marriott Data Breach, says the complaint.
Plaintiff John H. Cottrell is a resident of Plano, Texas. Plaintiff
Sheila Coughlin is a resident of Windham, Maine. Plaintiff Torri A.
Gaines is a resident of Seneca, South Carolina. Plaintiff Brent
McArthur is a resident of Blue Springs, Missouri. Plaintiff Sara
Schauer is a resident of Bradenton, Florida. Plaintiff John
Scribner is a resident of Sacramento, California. Plaintiff Edward
Twine is a resident of West New York, New Jersey. Plaintiff Martha
Cebrian Vega is a resident of Fort Worth, Texas. On or about
November 30, 2018, Plaintiffs reviewed news accounts of the
Marriott Data Breach.
Marriott, a Delaware corporation, is headquartered at 10400
Fernwood Road, Bethesda, Maryland 20817. Marriott's stock trades on
the NASDAQ under the ticker symbol "MAR". Marriott operates,
franchises, and licenses hotel, residential and timeshare
properties worldwide. The Company operates through three segments:
North American Full-Service, North American Limited-Service and
Asia Pacific.[BN]
The Plaintiffs are represented by:
Hassan Zavareei, Esq.
TYCKO & ZAVAREEI LLP
1828 L. Street, NW, Suite 1000
Washington, DC 20036
Phone: (202) 973-0910
Fax: (202) 973-0950
Email: hzavareei@tzlegal.com
- and -
Jeffrey W. Golan, Esq.
Stephen R. Basser, Esq.
Julie B. Palley, Esq.
BARRACK, RODOS & BACINE
3300 Two Commerce Square
2001 Market Street
Philadelphia, PA 19103
Phone: (215) 963-0600
Fax: (215) 963-0838
Email: jgolan@barrack.com
sbasser@barrack.com
jpalley@barrack.com
- and -
John G. Emerson, Esq.
Emerson Firm, PLLC
830 Apollo Lane
Houston, TX 77058
Phone: (800)-551-8649
Fax: (501)-286-4659
MARRIOTT INTERNATIONAL: Faces King Suit Over Data Breach
--------------------------------------------------------
DIANNE KING, on behalf of herself and all others similarly situated
v. MARRIOTT INTERNATIONAL, INC., Case No. 2:18-cv-10173 (C.D. Cal.,
December 6, 2018), seeks compensatory damages for actual harm
suffered and injunctive relief for real and immediate harm in the
future arising from a data breach.
On November 30, 2018, Marriott announced a massive customer data
security breach affecting 500 million customers, who stayed at
Starwood-brand hotel properties between 2014 and late 2018. The
Data Breach is unprecedented in its scope and duration, according
to the complaint. The database contained information on
approximately 500 million consumers, who made a reservation at a
Starwood property, including personally identifiable information
("PII"), payment card information ("PCI"), digital copies of
government-issued identification (such as driver's licenses and
U.S. passports), and additional information such as arrival and
departure information and dates of reservations.
Marriott International, Inc., is a Delaware corporation with its
principal place of business located in Bethesda, Maryland.
Marriott is a leading global lodging company with more than 6,700
properties, including Starwood, across 130 countries and
territories, with reported revenues of more than $22 billion in
fiscal year 2017.[BN]
The Plaintiff is represented by:
Daniel L. Warshaw, Esq.
PEARSON, SIMON & WARSHAW, LLP
15165 Ventura Boulevard, Suite 400
Sherman Oaks, CA 91403
Telephone: (818) 788-8300
Facsimile: (818) 788-8104
E-mail: dwarshaw@pswlaw.com
- and -
Melissa S. Weiner, Esq.
Joseph C. Bourne, Esq.
PEARSON, SIMON & WARSHAW, LLP
800 LaSalle Avenue, Suite 2150
Minneapolis, MN 55402
Telephone: (612) 389-0600
Facsimile: (612) 389-0601
E-mail: mweiner@pswlaw.com
jbourne@pswlaw.com
- and -
Alexander L. Simon, Esq.
PEARSON, SIMON & WARSHAW, LLP
44 Montgomery Street, Suite 2450
San Francisco, CA 94104
Telephone: (415) 433-9000
Facsimile: (415) 433-9008
E-mail: asimon@pswlaw.com
MARRIOTT INTERNATIONAL: Mortensen Sues over Data Breach
-------------------------------------------------------
ANDREW J. MORTENSEN, Individually and on Behalf of All Others
Similarly Situated, the Plaintiff, vs. MARRIOTT INTERNATIONAL,
INC., the Defendant, Case No. 1:18-cv-11740 (S.D.N.Y., Dec. 14,
2018), seeks to recover damages and injunctive relief as a result
of Defendant's failure to maintain the security of the financial
and personal information disseminated to Defendant in the course of
making and purchasing hotel reservations. The type of information
which Defendant failed to secure and safeguard is known as
personally identifiable information, or PII.
According to the complaint, Marriott collected such information in
connection with the operation of its business as an international
hotel chain. Defendant is liable for damages to Plaintiff and the
other Class members for inadequate security of Plaintiff's and the
other Class members' sensitive personal and financial data against
intrusion and breach of security. On November 30, 2018, Marriott
disclosed that a data breach lasting four years had compromised the
personal information of up to 500 million of its hotel guests
worldwide. Marriott said it was first notified of a potential
breach on September 8th. Defendant stated it had found that a cache
of information had been copied, encrypted, and possibly removed by
an unknown hacker.
On November 19th, the company was able to decrypt the files. On
November 30, 2018, Marriott disclosed that a data breach lasting
four years had compromised the personal information of up to 500
million of its hotel guests worldwide. Marriott said it was first
notified of a potential breach on September 8th. Defendant stated
it had found that a cache of information had been copied,
encrypted, and possibly removed by an unknown hacker. On November
19th, the company was able to decrypt the files and realized the
magnitude and nature of the breach. The information stolen includes
passport numbers, dates of birth, and potentially credit card
information, in addition to contact information such as mailing
addresses and email addresses.
Marriott's security failures enabled the hackers to steal PII and
financial data from Marriott's reservation systems and put
Plaintiff's and other Class members' personal and financial
information at serious and ongoing risk. The hackers may continue
to use the information they obtained as a result of Marriott's
inadequate security to exploit and injure Class members across the
United States. The Data Breach was caused and enabled by
Defendant's knowing violation of its obligations to abide by best
practices and industry standards in protecting customers' PII and
financial information. Marriott grossly failed to comply with
standard security protocols and allowed their customers' personal
and financial information to be compromised, all in an effort to
save money by cutting corners on security measures that could have
prevented or mitigated the Data Breach that occurred, the lawsuit
says.
Marriott International is an American multinational diversified
hospitality company that manages and franchises a broad portfolio
of hotels and related lodging facilities.[BN]
Attorneys for Plaintiff:
Brian P. Murray, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Avenue Rm 530
New York, NY 10169
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
E-mail: bmurray@glancylaw.com
- and -
Paul C. Whalen, Esq.
LAW OFFICE OF PAUL C. WHALEN, P.C.
768 Plandome Road
Manhasset, NY 11030
Telephone: (516) 426-6870
E-mail: paul@paulwhalen.com
MARYLAND TRANSIT: Johnson et al. Suit Moved to Maryland Dist. Court
-------------------------------------------------------------------
A case, Joseph Johnson, John C. Poteat, Lynnette Everett, Marshall
E. Gwynn, Erika Bannister, and Lamont D. Jackson, All Individually
and on Behalf of All Other Person Similarly Situated, the
Plaintiffs, vs. Maryland Transit Administration, the Defendant,
Case No. 24-C-18-005751, was removed from the Circuit Court for
Baltimore City, to the U.S. District Court for the District of
Maryland (Baltimore) Dec. 7, 2018. The District of Maryland Court
Clerk assigned Case No. 1:18-cv-03768-CCB to the proceeding. The
suit alleges Fair Labor Standards Act violation, seeking a demand
of $450,000. The case is assigned to the Hon. Judge Catherine C.
Blake.
The Maryland Transit Administration is a state-operated mass
transit administration in Maryland, and is part of the Maryland
Department of Transportation. It is better known as MTA Maryland to
avoid confusion with other cities' transit agencies who share the
initials MTA.[BN]
Attorneys for Plaintiffs:
James Martin Ray, II, Esq.
Andrew J Toland, III, Esq.
MALLON & MCCOOL, LLC
300 E. Lombard Street, Suite 815
Baltimore, MD 21202
Telephone: (410) 727-7887
Facsimile: (410) 727-4770
E-mail: jray@mallonandmccool.com
andytoland@msn.com
Attorneys for Defendant:
Eric Scott Hartwig, Esq.
MARYLAND OFFICE OF THE ATTORNEY GENERAL
Maryland Transit Administration
Saint Paul Street, 12th floor
Baltimore, MD 21202
Telephone: (410) 767-3904
Facsimile: (410) 333-2584
E-mail: ehartwig@mta.maryland.gov
MDL 2624: April 19 Settlement Fairness Hearing
----------------------------------------------
The United States District Court for the Northern District of
California, Oakland Division, issued an Order setting Schedules in
the case captioned IN RE: LENOVO ADWARE LITIGATION. This Document
Relates to All Cases. Case No. 4:15-md-02624-HSG. (N.D. Cal.)
The Order directed the parties to submit agreed dates to the Court
relating to notice and further proceedings on the proposed class
action settlement.
The parties submit the following deadlines:
* January 7, 2019 - Deadline for Settlement Administrator to
mail notice
* February 14, 2019 - Deadline to file motion for final
approval, and motion for attorneys' fees and costs and service
awards to class representatives
* March 25, 2019 - Deadline for class members to opt out of or
object to the settlement and/or the motion for attorneys' fees and
costs and service awards to class representatives
* April 18, 2019 at 2:00 p.m. - Final fairness hearing and
hearing on motions.
A full-text copy of the District Court's November 29, 2018 Order is
available at https://tinyurl.com/y9xw8og2 from Leagle.com.
In re Lenovo Adware Litigation, Plaintiff, represented by Jonathan
Krasne Levine -- jkl@pritzkerlevine.com -- Pritzker Levine, LLP.
Sterling International Consulting Group, Plaintiff, represented by
Elizabeth Cheryl Pritzker -- ecp@pritzkerlevine.com -- Pritzker
Levine LLP & Jonathan Krasne Levine, Pritzker Levine, LLP.
Lenovo Inc., Defendant, represented by Daniel James Stephenson --
dan.stephenson@klgates.com -- K&L Gates, Amanda G. Ray, Womble
Carlyle Sandridge & Rice, PLLC, Betsy Cook Lanzen --
betsy_lanzen@ncsu.edu -- Womble Carlyle Sandridge & Rice, PLLC,
Hayden J. Silver, III -- jay.silver@wbd-us.com -- Womble Carlyle
Sandridge & Rice, PLLC, Matthew N. Lowe -- matthew.lowe@klgates.com
-- KL Gates LLP, pro hac vice, Raymond M. Bennett --
ray.bennett@wbd-us.com -- Womble Carlyle Sandridge & Rice, PLLC &
Rebecca Liu -- rebecca.liu@klgates.com -- KL Gates LLP.
Superfish, Inc., defendant STAYED re Order, Defendant, represented
by Rodger R. Cole -- rcole@fenwick.com -- Fenwick & West LLP &
Tyler Griffin Newby -- tnewby@fenwick.com -- Fenwick & West LLP.
MIRAMED REVENUE: Carnes Sues over Debt Collection Practices
-----------------------------------------------------------
SARA CARNES, individually and on behalf of all others similarly
situated, Plaintiff v. MIRAMED REVENUE GROUP, LLC, Defendant, Case
No. 1:18-cv-03573-TWP-MJD (S.D. Ind., Nov. 15, 2018) seeks to stop
the Defendant's unfair and unconscionable means to collect a debt.
Miramed Revenue Group, LLC operates as a medical collection agency.
The company was founded in 2008 and is based in Lombard, Illinois.
Miramed Revenue Group, LLC operates as a subsidiary of MiraMed
Global Services, Inc. [BN]
The Plaintiff is represented by:
David J. Philipps, Esq.
Mary E. Philipps, Esq.
Angie K. Robertson, Esq.
Carissa K. Rasch, Esq.
PHILIPPS & PHILIPPS, LTD.
9760 S. Roberts Road, Suite One
Palos Hills, IL 60465
Telephone: (708) 974-2900
Facsimile: (708) 974-2907
E-mail: davephilipps@aol.com
mephilipps@aol.com
angie@philippslegal.com
carissa@philippslegal.com
MODESTO, CA: Embraces Report Justifying Electricity, Water Rates
----------------------------------------------------------------
Garth Stapley, writing for Modesto Bee, reports that Modesto
Irrigation District board members on Dec. 4 embraced an important
new report justifying prices for both electricity and farm water.
MID recently said electricity rates will not go up in 2019, a point
restated in the Dec. 4 action. Whether farm water rates will rise
typically is decided before irrigation starts flowing in the
spring.
The new cost of service study, a year in the making, clearly
positions the utility to defend itself in a class-action lawsuit
accusing MID of overcharging electricity customers in order to
subsidize farm water prices.
That subsidy no longer exists, the report says, thanks to a new way
of looking at MID's books.
The cost of delivering water -- $21.3 million per year, in the
latest budget -- has not changed, and neither has the amount
farmers pay: $4.1 million. The $17.2 million gap now is filled, the
study says, with "other revenue," including a new category called
discretionary revenue that largely comes from wholesaling surplus
electricity on the open market, as opposed to retail sales to local
homes and businesses.
"Our conclusion is there is no subsidization," said William Monsen,
a consultant helping produce the cost of service study. "Irrigation
service is being fully covered by rate revenue and non-rate (or
discretionary) revenue."
The study also found that "electricity customers are paying
slightly less than the cost of service," Mr. Monsen said, "so your
rates are reasonable."
The board has not raised power rates since 2012, when an attorney
advised that doing so without a vote of the people might violate
state law. Before then, prices had jumped significantly almost
every year for power customers, which today include 97,935 homes
and 12,490 businesses.
Attorney Michael Colantuono, hired to shepherd the cost of service
study -- and to defend MID in the class-action lawsuit -- said, "It
looks like you'll be able to (go) a few more" years before raising
electric rates, if desired. The board can make that decision
without a customer vote, he said.
Two attorneys representing unidentified customers, Stacy Henderson
and Bob Fores, praised the study.
"When I read the report, I said, 'This is exactly what the district
needs: solid figures and solid facts to support solid decision
making,' " Henderson said.
Electricity customer Kurt Danziger of Escalon, however, called the
presentation a creative accounting "dog and pony show" raising
plenty of questions for people who have heard about the subsidy for
years. For at least two decades, board members have acknowledged
the imbalance and have taken formal and informal steps to address
it, including raising farm water prices.
Board member Paul Campbell said the study makes MID's rates
"justifiable and defendable, and the financial activity of this
entity over time has been commendable."
Mr. Colantuono said MID has improved its financial health by
significantly paying back debt in recent years.
Stu Gilman, a board member who campaigned on a promise of bringing
equity to power customers, said he would like to "look at some
things we can do with discretionary revenue to make rates even more
favorable to ratepayers."
Technically, the board on Dec. 4 repealed all rates and immediately
replaced them with identical ones, this time based on the cost of
service study. The vote was unanimous.
In August, the California Supreme Court sided with Mr. Colantuono
and a Redding utility facing accusations similar to those brought
against MID in the class-action lawsuit. Considering wholesale
revenue apart from other electricity income was central in the
Redding case, and MID hopes it will become a key factor in the
local case.
About 30 minutes before, no board member seconded Larry Byrd's
motion that Nick Blom continue as board chairman, and the board
settled on Campbell for that job. Messrs. Byrd and Blom then voted
against John Mensinger replacing Mr. Byrd as vice chairman, but
they were outvoted by Messrs. Mensinger, Campbell and Gilman. [GN]
NATIONAL FUNDING: Walling Seeks Earned Wages for Sale Reps
----------------------------------------------------------
LESLIE WALLING on behalf of all aggrieved employees, the Plaintiff,
vs. NATIONAL FUNDING, INC., a California corporation; DAVID
GILBERT, an Individual; and DOES 1 through 25, the Defendants, Case
No. 37-2D18-00061889-CU-0E-CTL (Cal. Super. Ct., Dec. 6, 2018),
alleges that Defendants denied Plaintiffs and all aggrieved
employees rightfully earned wages and commissions, overtime
premiums, paid rest periods, and compliant meal periods.
According to the complaint, the Defendants employed Plaintiff and
all such aggrieved employees as sales representatives pursuant to a
pay structure that provided a base salary plus commissions for
sales. The Defendants pay commissions on a monthly basis,
irrespective of when those commissions were earned, when the
commissions vested, and when the company had the ability to pay
those earned commissions. Employees were discouraged from taking
breaks, and sales persons rarely took complaint paid, uninterrupted
rest breaks. Employees were required to clock out for meals, but
encouraged to work through those meals. Wage statements issued to
employees did not properly reflect the hours worked, correct hourly
rates, including the proper overtime rates taking commissions into
account, the lawsuit says.
National operates a call center in the greater San Diego area. Its
sales associates use multiple software programs to perform their
tasks, including a dialing program, a timekeeping program, and
client relationship management ("CRM") program as well. The CRM
software tracks all of the sales associate’s activities,
including timestamps of when those activities occurred.[BN]
Attorneys for Plaintiffs:
Kenneth A. Goldman, Esq.
LAW OFFICE OF KENNETH A. GOLDMAN, PC
Ventura Boulevard, Suite 1650
Sherman Oaks, CA 91403
Telephone: (818) 287-7689
E-mail: ken@kengoldmanlaw.com
- and -
Jonathan M. Lebe, Esq.
LEBE LAW, APLC
Melrose Avenue
Los Angeles, CA 90038-3889
Telephone: (310) 921-7056
E-mail: jon@lebelaw.com
NAUTICAL SERVICES: Iaccarino Seeks Unpaid Overtime Wages
--------------------------------------------------------
Luis Maria Iaccarino and all others similarly situated, Plaintiff,
v. Nautical Services LLC and Juan Rodriguez, Defendants, Case No.
18-cv-25101 (S.D. Fla., December 5, 2018), requests double damages
and reasonable attorney fees, jointly and severally, pursuant to
the Fair Labor Standards Act for all overtime wages still owing
along with court costs, interest and any other relief.
Iaccarino worked for Defendants from on or about April 7, 2014
through on or about October 16, 2018, as a welder, while also
building structures and doing mechanical work. Iaccarino worked an
average of 60 hours a week without being paid the extra half time
rate for any hours worked over 40, relates the complaint. [BN]
The Plaintiff is represented by:
J.H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Tel: (305) 865-6766
Fax: (305) 865-7167
Email: zabogado@aol.com
NCI BUILDING: Faces Voigt Stockholder Class Action
--------------------------------------------------
NCI Building Systems, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on December 19, 2018,
for the fiscal year ended October 28, 2018, that the company is
facing a putative class action suit filed by an individual
stockholder named Gary D. Voigt.
On November 14, 2018, an individual stockholder, Gary D. Voigt,
filed a putative class action Complaint in the Delaware Court of
Chancery against Clayton Dubilier & Rice, LLC ("CD&R"), Clayton,
Dubilier & Rice Fund VIII, L.P. ("CD&R Fund VIII"), and certain
directors of NCI.
Voigt purports to assert claims on behalf of himself, on behalf of
a class of other similarly situated stockholders of NCI, and
derivatively on behalf of NCI, the nominal defendant. The complaint
asserts claims for breach of fiduciary duty and unjust enrichment
against CD&R Fund VIII and CD&R, and for breach of fiduciary duty
against the director defendants in connection with the Merger.
Voigt seeks damages in an amount to be determined at trial.
NCI intends to vigorously defend the litigation.
NCI Building Systems, Inc. designs, engineers, manufactures, and
markets metal products for the nonresidential construction industry
in North America. It operates in four segments: Engineered Building
Systems, Metal Components, Insulated Metal Panels, and Metal Coil
Coating. NCI Building Systems, Inc. was founded in 1984 and is
headquartered in Houston, Texas.
NEBRASKA: Feb. 19 Deadline to File Bid to Certify Sabata Class
--------------------------------------------------------------
The United States District Court for the District of Nebraska
issued an Order granting Parties' Joint Stipulated Motion to Amend
Order Setting Final Schedule for Progression in the case captioned
HANNAH SABATA, et al., Plaintiffs, v. NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES, et al., Defendants. No. 4:17CV3107. (D.
Neb.).
Any motion to certify this case as a class action must be filed by
February 19, 2019, in the absence of which any claim in the
pleadings that this is a class action will be deemed abandoned, and
the case will proceed, for purposes of Fed. R. Civ. P. 23, as if a
motion for class certification had been filed and denied by the
Court. The Defendants must file their response to the Plaintiffs'
class certification motion by April 26, 2019. The Plaintiffs may
file a reply by May 24, 2019.
A full-text copy of the District Court's November 29, 2018 Order is
available at https://tinyurl.com/ybcb8296 from Leagle.com.
Hannah Sabata, on behalf of themselves and all others similarly
situated, Dylan Cardeilhac, on behalf of themselves and all others
similarly situated, James Curtright, on behalf of themselves and
all others similarly situated, Jason Galle, on behalf of themselves
and all others similarly situated, Richard Griswold, on behalf of
themselves and all others similarly situated, Michael Gunther, on
behalf of themselves and all others similarly situated, Angelic
Norris, on behalf of themselves and all others similarly situated,
Isaac Reeves, on behalf of themselves and all others similarly
situated, Zoe Rena, on behalf of themselves and all others
similarly situated & Brandon Sweetser, on behalf of themselves and
all others similarly situated, Plaintiffs, represented by Aaron T.
Goodman -- aaron.goodman@dlapiper.com -- DLA PIPER LAW FIRM, pro
hac vice, Amy Fettig, AMERICAN CIVIL LIBERTIES UNION, pro hac vice,
Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Andrew D.
Day -- andrew.day@dlapiper.com -- DLA PIPER US LAW FIRM, pro hac
vice, Anna P. Bitencourt Emilio, NATIONAL ASSOCIATION OF THE DEAF
LAW & ADVOCACY CENTER, pro hac vice, Benjamin Bien-Kahn --
bbien-kahn@rbgg.com -- ROSEN, BIEN LAW FIRM, pro hac vice,
Christopher M. Young -- christopher.young@dlapiper.com -- DLA PIPER
LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES
UNION, pro hac vice, Dawn M. Jenkins -- dawn.jenkins@dlapiper.com
-- DLA PIPER LAW FIRM, pro hac vice, Ernest Galvan, ROSEN, BIEN LAW
FIRM, pro hac vice, Jennifer Eldridge --
jennifer.eldridge@dlapiper.com -- DLA PIPER LAW FIRM, pro hac
vice.
Nebraska Department of Correctional Services, Scott Frakes, In his
official capacity as Director of the Nebraska Department of
Correctional Services, Harbans Deol, In his official capacity as
Director of Health Services of the Nebraska Department of
Correctional Services, Nebraska Board of Parole & Julie Micek, In
her official capacity as the Board of Parole Acting Parole
Administrator, Defendants, represented by Danielle L. Rowley,
ATTORNEY GENERAL'S OFFICE, David A. Lopez, ATTORNEY GENERAL'S
OFFICE, Jessica M. Forch, ATTORNEY GENERAL'S OFFICE, Katherine
O'Brien, ATTORNEY GENERAL'S OFFICE & Ryan S. Post, ATTORNEY
GENERAL'S OFFICE.
NEVADA GOLD: Faces Maverick Casinos Merger-Related Suits
--------------------------------------------------------
Nevada Gold & Casinos, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on December 17, 2018, for
the quarterly period ended October 31, 2018, that the company faces
class action suits in relation to its merger with Maverick Casinos,
LLC.
On September 18, 2018, the Company announced the signing of a
merger agreement with Maverick Casinos, LLC ("Maverick"). Under the
terms of the merger agreement, Maverick will acquire all of the
outstanding shares of the Company's common stock for $2.50 per
share in cash, subject to certain minor adjustments. The
transaction will result in the Company becoming a private company.
On December 6, 2018, a stockholder class action complaint was filed
regarding the shareholder vote on the Maverick merger agreement.
The complaint alleges deficiencies in the disclosure in the
Company's preliminary proxy statement filed on December 3, 2018.
Also, on December 7, 2018, a similar suit, which purports to be a
class action complaint, was filed seeking to enjoin the proposed
merger transaction with Maverick.
The Company is reviewing the allegations which are in their early
stages, but the Company believes they have no basis and the Company
will vigorously defend itself.
Nevada Gold & Casinos, Inc., a gaming company, finances, develops,
owns, and operates gaming properties and projects. It operates in
three segments: Washington, South Dakota, and Nevada. The company
was founded in 1977 and is headquartered in Las Vegas, Nevada.
NEVADA GOLD: Kikendall Suit Seeks to Enjoin Sale to Maverick
------------------------------------------------------------
WILLIAM KIKENDALL, on Behalf of Himself and All Others Similarly
Situated v. NEVADA GOLD & CASINOS, INC., WILLIAM J. SHERLOCK, FRANK
CATANIA, WILLIAM G. JAYROE, RUDOLPH K. KLUIBER, SHAWN W. KRAVETZ,
and FRANCIS M. RICCI, Case No. 2:18-cv-02323 (D. Nev., December 6,
2018), seeks to enjoin the vote on a proposed transaction, pursuant
to which Nevada Gold will be acquired by Maverick Casinos LLC,
through Maverick's wholly-owned subsidiary Maverick Casinos Merger
Sub, Inc.
On September 18, 2018, Nevada Gold issued a press release
announcing it had entered into an Agreement and Plan of Merger
dated September 18, 2018 (as amended on November 29, 2018, the
"Merger Agreement"), to sell Nevada Gold to Maverick. Pursuant to
the terms of the Merger Agreement, Nevada Gold stockholders will
receive $2.50 in cash for each share of Nevada Gold common stock
they own. The Proposed Transaction has an implied equity value of
approximately $43,238,000.
The Plaintiff alleges that the Preliminary Proxy Statement filed
with the SEC in connection with the Proposed Transaction omits or
misrepresents material information concerning, among other things,
Nevada Gold management's financial projections, including the
financial projections relied upon by Nevada Gold's financial
advisor in its financial analyses.
Nevada Gold is a Nevada corporation with its principal executive
offices located in Las Vegas, Nevada. Nevada Gold is a gaming
company involved in financing, developing, owning and operating
gaming properties and projects. The Individual Defendants are
directors and officers of the Company.
Maverick is a Nevada limited liability company with its principal
executive offices located in Las Vegas. Maverick is managed and
majority owned by Eric Persson. Mr. Persson is also Manager of,
and holds the largest percentage membership interest in, Maverick
Gaming, LLC, which owns the Wendover Nugget Hotel & Casino and Red
Garter Hotel & Casino in Wendover, Nevada, along with various other
assets. Merger Sub is a Nevada corporation and a wholly-owned
subsidiary of Maverick.[BN]
The Plaintiff is represented by:
Andrew R. Muehlbauer, Esq.
MUEHLBAUER LAW OFFICE, LTD.
7915 West Sahara Ave., Suite 104
Las Vegas, NV 89117
Telephone: (702) 330-4505
Facsimile: (702) 825-0141
E-mail: andrew@mlolegal.com
- and -
Richard A. Acocelli, Esq.
Michael A. Rogovin, Esq.
Kelly K. Moran, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
E-mail: racocelli@weisslawllp.com
mrogovin@weisslawllp.com
kmoran@weisslawllp.com
- and -
Melissa A. Fortunato, Esq.
BRAGAR EAGEL & SQUIRE, P.C.
885 Third Avenue, Suite 3040
New York, NY 10022
Telephone: (212) 308-5858
Facsimile: (212) 214-0506
E-mail: fortunato@bespc.com
NEW YORK: Court Approves Revised Consent Decree Suit vs. NYCHA
--------------------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order granting Plaintiffs' Motion to
Approve Revised Settlement in the case captioned MARIBEL BAEZ, et
al., Plaintiffs, v. NEW YORK CITY HOUSING AUTHORITY, Defendant. No.
13cv8916. (S.D.N.Y.).
Plaintiffs move for approval of a revised settlement in this class
action against the New York City Housing Authority (NYCHA).
New York City public housing tenants suffering from asthma brought
a class action against NYCHA for its failure to abate mold and
excessive moisture in their apartments. NYCHA did not litigate the
claims but opted instead to settle the action only months after it
was filed. This Court approved a Stipulation and Order of
Settlement. Under the Consent Decree, NYCHA promised in broad
strokes to abate mold and excessive moisture by completing 95% of
simple and complex work orders within 7 and 15 days, respectively.
The Consent Decree also imposed certain periodic reporting
requirements on NYCHA.
Here, the Plaintiffs style their motion as one seeking judicial
approval of a proposed class action settlement under Rule 23(e),
which in relevant part provides that the claims, issues, or
defenses of a certified class may be settled, voluntarily
dismissed, or compromised only with the court's approval.
The Plaintiffs suggest that Rule 60(b) does not apply because the
Consent Decree contains no self-executing mechanism for dismissal
of the action. But the Second Circuit has explained that the fact
that a formal stipulation of dismissal has yet to be filed does not
destroy the finality of a consent injunction that disposes of the
merits of the litigation. To further bolster their position that
the Consent Decree is not final for purposes of Rule 60(b),
Plaintiffs also argue that additional steps would be required to
enter a final judgment even if the Consent Decree had expired on
its own terms.
NYCHA's contention that Rule 60(b) relief is particularly
inappropriate where the relevant challenge is brought to a class
action settlement is unpersuasive.
Rufo, 502 U.S. at 378. Under the Rufo standard, a party seeking
modification of a consent decree bears the burden of establishing
that a significant change in circumstances warrants revision of the
decree. If the movant meets this standard, the court should
consider whether the proposed modification is suitably tailored to
the changed circumstance.
As an initial matter, settled Second Circuit precedent recognizes
that Rufo applies at minimum to modifications of institutional
reform consent decrees. But the question of whether Rufo as opposed
to United Shoe also governs modifications of institutional reform
consent decrees that impose additional obligations on an enjoined
defendant does not appear to have been squarely examined by the
Second Circuit. Nonetheless, useful guidance may be gleaned from
existing authority.
Specifically, the Second Circuit has rejected the proposition that
Rufoonly applies when a party requests to be relieved of some
obligation imposed upon it by the terms of the consent decree.
Having concluded that NYCHA's continuing failure to perform under
the Consent Decree threatens the achievement of the decree's goals
such that modification is warranted, this Court must now determine
whether the modifications are suitably tailored to NYCHA's
violations.
This Court concludes that requiring NYCHA to address mold
reoccurrence explicitly and to implement revised protocols and
procedures with the Special Master and Independent Mold Analyst's
assistance is suitably tailored to NYCHA's worsening mold
reoccurrence rate and NYCHA's excuse that the Consent Decree did
not include any formal obligation to address mold reoccurrence.
Moreover, the "best efforts" obligation is appropriately aimed
toward preventing NYCHA from excusing its non-performance by
claiming that a tenant's repair falls within the worst 5% of cases.
This Court also finds that the addition of an Independent Data
Analyst and a certification requirement for NYCHA's periodic
reports is proper to address rampant inaccuracies in those reports.
Further, an Ombudsperson tasked with addressing tenant concerns
over mold remediation efforts and enforcing the Revised Consent
Decree's best efforts obligation is satisfactorily directed toward
NYCHA's inability to complete 15-day repairs in a timely fashion as
well as NYCHA's rising mold reoccurrence rate. Finally, the removal
of the Consent Decree's sunset provision disincentivizes NYHCA from
stalling until the Consent Decree expires. Ultimately, these
modifications will better serve the underlying goals of the Consent
Decree of ensuring that NYCHA effectively remediates mold in its
apartments.
Accordingly, the Plaintiffs' motion to approve the Revised Consent
Decree is granted.
A full-text copy of the District Court's November 29, 2018 Opinion
and Order is available at https://tinyurl.com/yaqcdcwz from
Leagle.com.
Maribel Baez, on their own behalf and on behalf of all others
similarly situated, Plaintiff, represented by Zachary Willis
Chalett, Proskauer Rose LLP, Albert Huang -- ahuang@nrdc.org --
Natural Resources Defense Council, Inc., Erin Marie Meyer,
Proskauer Rose LLP, Gregory Lee Bass, National Center For Law and
Economic Justice, Henry A. Freedman -- freedman@nclej.org --
Welfare Law Center, Inc., Marc Cohan, Welfare Law Center, Inc.,
Mitchell S. Bernard, Natural Resources Defense Council, Inc., Nancy
Sharman Marks, Natural Resources Defense Council, Inc., Petra T.
Tasheff, National Center For Law and Economic Justice & Steven M.
Edwards -- stevenedwards@quinnemanuel.com -- Quinn Emanuel Urquhart
& Sullivan.
New York City Housing Authority, Defendant, represented by Miriam
Skolnik -- MSkolnik@herzfeld-rubin.com -- Herzfeld & Rubin, P.C. &
Wendy L. Prince -- WPrince@herzfeld-rubin.com -- Herzfeld & Rubin,
P.C.
NEWCOMB OIL: Southard Seeks Overtime Pay for Attendants
-------------------------------------------------------
MICHAEL SOUTHARD, on behalf of himself and all others similarly
situated, the Plaintiff, NEWCOMB OIL CO., LLC d/b/a and NEWCOMB OIL
CO., the Defendant, Case No. 3:18-cv-00803-CRS (W.D. Ky., Dec. 12,
2018), alleges that Defendant routinely failed to provide
reasonable meal and rest periods; failed to compensate for all
hours worked; failed to pay overtime wages; failed to pay for all
wages in full upon separation of employment; failed to provide
timely and accurate itemized wage statements; and improperly
withheld wages pursuant to Kentucky Revised Statute.
According to the complaint, Michael Southard brings this class
action on behalf of himself and other similarly situated
individuals who have worked for Defendant as convenience store
attendants in Kentucky at any time beginning five years before the
filing of Plaintiff's original complaint on November 14, 2018,
until resolution of this action. The Plaintiff and similarly
situated attendants have been denied payment for all hours worked,
including overtime, and denied timely rest periods and meal periods
in compliance with Kentucky law. Newcomb enacted a policy of
requiring attendants to work through their statutorily mandated
meal and rest periods. This resulted in attendants being denied
overtime pay at a rate of one-and-one-half their regular rates of
pay for all hours worked beyond 40 in a work week.
The Defendant's illegal practices resulted in unjust enrichment.
The Plaintiff and members of the proposed class and collective are
current and former non-exempt employees, including but not limited
to, attendants, clerks, and/or cashiers who worked in Defendant's
convenience stores throughout Kentucky. The Defendant enacted a
policy denying Plaintiff and proposed class members meal and rest
periods during their shifts. The Plaintiff and proposed class and
collective members routinely performed work off-the-clock that was
not compensated. The Plaintiff and proposed class and collective
members were also required to incur business expenses, including
slip-resistant shoes, work pants, and personal cell phone usage for
business purposes. The Defendant did not reimburse these business
expenses, the lawsuit says.
Newcomb Oil Co., LLC, doing business as FiveStar Food Mart,
supplies fuel and food. The company offers fresh food that include
breakfast, lunch, and anytime food.[BN]
Attorneys for Plaintiff:
Carolyn Hunt Cottrell, Esq.
William M. Hogg, Esq.
SCHNEIDER WALLACE COTTRELL
KONECKY WOTKYNS LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: ccottrell@schneiderwallace.com
whogg@schneiderwallace.com
- and -
Michael P. Abate, Esq.
KAPLAN JOHNSON ABATE & BIRD LLP
710 West Main Street, Fourth Floor
Louisville, KY 40202
Telephone: (502) 416-1630
Facsimile: (502) 540-8282
E-mail: mabate@kaplanjohnsonlaw.com
NMRR INC: Fails to Pay Proper Wages to Caregivers, Lee Says
-----------------------------------------------------------
NINA LEE, individually and on behalf of all others similarly
situated, Plaintiff v. NMRR INC., and DOES 1-100, Defendants, Case
No. RG18929133 (Cal. Super., Alameda Cty., Nov. 15, 2018) is an
action against the Defendants for unpaid regular hours, overtime
hours, minimum wages, wages for missed meal and rest periods.
The Plaintiff Lee was employed by the Defendants as caregiver.
NMRR Inc. is doing business in California. [BN]
The Plaintiff is represented:
Michael Malk, Esq.
MICHAEL MALK, ESQ., APC
1180 South Beverly Drive, Suite 302
Los Angeles, CA 90035
Telephone: (310) 203-0016
Facsimile: (310) 499-5210
E-mail: MM@MALKLWFIRM.COM
NORTHSTAR LOCATION: Faces Marranca FDCPA Suit in New Jersey
-----------------------------------------------------------
A class action lawsuit has been filed against Northstar Location
Services, LLC. The case is captioned as JUSTIN MARRANCA, on behalf
of himself and all others similarly situated, the Plaintiff, vs.
NORTHSTAR LOCATION SERVICES, LLC and JOHN DOES 1-25, the
Defendants, Case No.: 2:18-cv-16992-MCA-SCM (D.N.J., Dec. 8, 2018).
The suit alleges Fair Debt Collection Act violation. The case is
assigned to the Hon. Judge Madeline Cox Arleo.
Northstar Location Services, LLC, doing business as The Northstar
Companies, provides receivables debt collection services to
customers in the United States, Canada, and internationally. Its
services include first and third-party debt collections, customer
care programs, and location services.[BN]
Attorneys for Plaintiff:
Joseph K. Jones, Esq.
JONES, WOLF & KAPASI, LLC
375 Passaic Avenue, Suite 100
Fairfield, NJ 07004
Telephone: (973) 227-5900
Facsimile: (973) 244-0019
E-mail: jkj@legaljones.com
OCEAN SPRAY: Court Certifies Hilsley Class
------------------------------------------
The United States District Court for the Southern District of
California issued an Order granting in part and denying in part
Plaintiffs' Motion for Class Certification in the case captioned
CRYSTAL HILSLEY, on behalf of herself and all others similarly
situated, Plaintiff, v. OCEAN SPRAY CRANBERRIES, INC.; ARNOLD
WORLDWIDE LLC; and DOES defendants 1 through 5, inclusive,
Defendants. Case No. 17cv2335-GPC(MDD). (S.D. Cal.).
Plaintiff Crystal Hilsley (Hilsley) brings a purported consumer
class action against Defendants Ocean Spray Cranberries, Inc., and
Arnold Worldwide LLC for violations of California consumer
protection laws based on misrepresentation of labels stating no
artificial flavors on certain Ocean Spray products.
Rule 23(a)(1) - Numerosity
The Plaintiff argues that the class is sufficiently numerous to
satisfy Rule 23(a)(1) as Ocean Spray admitted in its notice of
removal that class members have made millions of purchases of the
twelve products and the amount in controversy exceeds $5,000,000.
Based on the Defendants' assertions in the notice of removal, and
their non-opposition, the Court concludes that the class will
number significantly more than 40 members and numerosity has been
met.
Rule 23(a)(2) - Commonality
The Plaintiff argues that commonality is satisfied because common
questions include whether Ocean Spray's No artificial flavor claims
and its failure to disclose that the Products contain artificial
flavor is likely to deceive; whether Ocean Spray communicated a
representation, through its packaging and labeling, that its
products contain No artificial flavors; and if so, whether that
representation was material to individuals purchasing the Ocean
Spray Products; if the representation was material, whether it was
truthful; and if reasonable consumers who purchased Ocean Spray
Products were deceived by a material misrepresentation, what is the
proper method for calculating damages.
In response, Defendants argue there is no commonality because
Plaintiff has provided no evidence that malic acid and fumaric acid
function as flavors in these Products. Without evidence of a key
threshold fact that malic acid and fumaric acid function as
flavors, the causes of action in the complaint fail. Defendants
explain that malic and fumaric acids do not act as flavors in their
products but serve as non-flavored acidulants that control the
acidity of the respective products.
As to commonality, Rule 23(a)(2) requires Plaintiff to show "there
are questions of law or fact common to the class." Fed. R. Civ. P.
23(a)(2). Commonality requires the plaintiff to demonstrate that
the class members `have suffered the same injury. In misbranding or
false advertising cases, courts routinely find that commonality has
been satisfied.
Here, Defendants do not dispute that there are common issues of
fact and law to the class. Instead, they argue that a threshold
issue must be resolved as to whether malic or fumaric acid
constitute flavors in their Products. If malic and fumaric acids do
not function as flavors, then it would be a death knell to
Plaintiff's entire case.
In Alcantar v. Hobart Serv., 800 F.3d 1047, 1053 (9th Cir. 2015),
the Ninth Circuit held that the district court improperly concluded
there was no commonality because the plaintiff had not offered any
evidence demonstrating that the defendant had a uniform
company-wide policy requiring technicians to commute in their
service vehicles. The district court incorrectly concluded that
because there is no evidence to suggest that technicians were
required to drive the service vehicles to their homes, the lack of
a potential legal argument precludes a common issue of fact or law
for purposes of Rule 23(a)(2).
According to the Ninth Circuit, this conclusion requires too much
of the plaintiff by demanding a common contention that will be
answered, on the merits in favor of the class instead of simply
showing there is a common contention capable of classwide
resolution. The Ninth Circuit noted that if it is ultimately
determined that the plaintiff fails to prove an element of his
claim, it would generate a fatal similarity that would make the
class action fair and efficient.
Likewise, the Defendants improperly ask the Court to make a
determination on the merits of the case which is not proper at
class certification. As directed by the Ninth Circuit in Alcantar,
the Court's focus is on whether Plaintiff has presented a common
contention capable of class wide resolution, not whether Plaintiff
has provided evidence that fumaric and malic acids are flavors.
Instead, whether fumaric and malic acids, as used in Defendants'
Products, act as flavor ingredients is one contention common to the
class. Thus, Plaintiff has demonstrated commonality.
Rule 23(a)(3) - Typicality
The Plaintiff asserts her claims are typical of those of the class
members because she and all class members were exposed to the same
misleading claims and omissions, were influenced by those claims
and omissions and were injured in the same manner.
The Defendants argue that the Plaintiff's guru-for-hire services as
a health coach and label guru creates a financial incentive on her
part that is not typical of other class members and create bias and
credibility issues that could harm the interests of absentee class
members.
Under typicality, the Court must determine whether the claims or
defenses of the representative parties are typical of the claims or
defenses of the class.
The Court agrees that Defendants' focus on the personal education
and employment background of Plaintiff is not relevant in assessing
typicality. The Federal Rules specifically note that the typicality
inquiry is on the class representative's claims or defenses and
whether they are typical of the class.
Here, Plaintiff has demonstrated that her claims are typical as the
Complaint alleges that she and all class members purchased the
Products, were deceived by the false and deceptive labeling and
lost money as a result. All class members were exposed to the same
omission and affirmative misrepresentation on the labels of the
Products. Therefore, the Court concludes that Plaintiff has
established that her claims and injuries are typical of the claims
and injuries of the class.
Rule 23(a)(4) - Adequacy
The Plaintiff argues that she is an adequate class representative
because she has no conflict of interest with other class members,
she is aware of her obligations as a class representative, and she
has prosecuted and will continue to prosecute the action vigorously
on behalf of the class.
Rule 23(a)(4) provides that class representatives must fairly and
adequately protect the interests of the class. In analyzing whether
Rule 23(a)(4) has been met, the Court must ask two questions: (1)
do the named plaintiff's and their counsel have any conflicts of
interest with other class members and (2) will the named
plaintiff's and their counsel prosecute the action vigorously on
behalf of the class?
The Defendants do not allege that the Plaintiff and her counsel
have any conflict of interest with other class members but appear
to argue that they will not prosecute the action vigorously and
raise other arguments not relevant to an adequacy inquiry.
First, Defendants argue that Plaintiff was recruited by counsel to
be a class representative in this case. Before being recruited by
counsel, Plaintiff did not have an issue with Ocean Spray products
and did not know she was being harmed by the Products. She also had
no prior legal relationship with her counsel who solicited her, did
not interview any other potential law firms to represent her and
conducted minimal research into her counsel. Plaintiff replies that
even if her counsel recruited her, which she claims they did not,
recruitment by counsel is not relevant to the adequacy analysis.
Second, Defendants argue that Plaintiff's refusal to answer
interrogatories, refusal to produce documents, refusal to appear
for a deposition, and her giving knowingly false testimony during
her deposition make her an inadequate class representative.
Relatedly, Defendants argue that Plaintiff's counsel are inadequate
based on their failure to provide discovery responses, their
refusal to make Hilsley available for deposition prior to the class
discovery cut-off date, and allowing their client to give false
deposition testimony. Plaintiff replies that Defendants sat on
their discovery rights and the fault lies with them because they
failed to seek assistance from the court.
If Defendants deemed Plaintiff's responses and answers as
non-responsive, after the meet and confer, they should have filed
an appropriate discovery motion with the Magistrate Judge to
resolve any discovery issues. Moreover, Federal Rule of Civil
Procedure 37 provides that a party may seek to compel discovery
responses if a party fails to answer an interrogatory or fails to
produce documents.
The Defendants' failure to invoke the discovery dispute procedures
cannot be a basis for the Court to conclude that Plaintiff refused
to provide discovery responses. Without a determination by the
Magistrate Judge, the Court is not able to determine whether
Plaintiff's responses were non-responsive. Plaintiff may, in fact,
have had valid reasons for objecting to Defendants' discovery
requests. Therefore, Defendants' argument that Plaintiff and her
counsel are inadequate based on their failure to respond to
discovery requests is without merit.
In sum, the Court concludes that Plaintiff has demonstrated
adequacy as to herself as a class representative, and as to her
counsel.
Federal Rule of Civil Procedure 23(b)(3)
Under Rule 23(b)(3), the plaintiff must demonstrate that a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy and that the questions of
law or fact common to class members predominate over any questions
affecting only individual members.
Predominance is satisfied when common questions present a
significant aspect of the case and they can be resolved for all
members of the class in a single adjudication.
Predominance
The Plaintiff argues that common issues predominate concerning her
claims under California's CLRA, UCL and FAL because the issue is
whether Defendants misrepresented the Products and whether the
misrepresentations were likely to deceive a reasonable consumer.
As to the breach of express warranty claims, Plaintiff maintain
that Ocean Spray made the same warranty to every class member that
their Products contained No artificial flavors; therefore,
resolution of the issue only requires whether the No artificial
flavors is an express warranty, and if so, whether the Products
conforms to the promises and descriptions on the labels.
The Defendants argue that predominance has not been met for the
same reason why they claim that commonality was not met. They
contend that because Plaintiff has failed to present evidence that
malic and fumaric acids function as flavors in the products at
issue, it is a death knell to her motion as it pervades each of the
claims.
The predominance inquiry `asks whether the common,
aggregation-enabling, issues in the case are more prevalent or
important than the non-common, aggregation-defeating, individual
issues. When `one or more of the central issues in the action are
common to the class and can be said to predominate, the action may
be considered proper under Rule 23(b)(3) even though other
important matters will have to be tried separately, such as damages
or some affirmative defenses peculiar to some individual class
members.
Here, the Defendants do not challenge Plaintiff's predominance
argument that common issues predominate on her legal claims.
Plaintiff's UCL, FAL and CLRA claims depend on whether the labels
are unlawful, unfair, deceptive, or misleading to reasonable
consumers, an objective standard. Each of the three statutes allows
plaintiff's to establish materiality and reliance (i.e., causation
and injury) by showing that a reasonable person would have
considered the defendant's representation material.
A plaintiff does not need to demonstrate individual reliance.
Therefore, these causes of action requiring an objective test make
such claims amenable to class actions. Similarly, for a breach of
express warranty claim,7 a plaintiff need not prove reliance on
specific representations. Because each of the elements are subject
to common proof, common issues predominate over individual ones on
the UCL, FAL, CLRA and breach of express warranty.
On a claim of breach of implied warranty, a plaintiff must
demonstrate that goods are fit for the ordinary purpose for which
such goods are used. California requires that a plaintiff alleging
a breach of implied warranty claim be in vertical privity with the
defendant. An exception to the privity requirement exists but only
as to breach of express warranty, and not breach of implied
warranty.
The Complaint alleges breach of implied warranty under the
California Commercial Code which provides for an implied warranty
that goods are fit for [the] ordinary purposes for which such goods
are used. Because vertical privity is required between the
plaintiff and the defendant, and because Plaintiff and class
members purchased the Products in retail stores, individual
inquiries will be predominate to determine if there is vertical
privity between class members and Defendants.
The Court concludes that Plaintiff has demonstrated that questions
common to the class predominate over any individual questions
affecting members as to the UCL, FAL, CLRA and breach of express
warranty claims but not as to the breach of implied warranty
claim.
Superiority
Rule 23(b)(3) requires that a class action be superior to other
available methods for fairly and efficiently adjudicating the
controversy,' and it specifically mandates that courts consider
`the likely difficulties in managing a class action. Superiority
requires a consideration of (A) the class members' interests in
individually controlling the prosecution or defense of separate
actions (B) the extent and nature of any litigation concerning the
controversy already begun by or against class members (C) the
desirability or undesirability of concentrating the litigation in
the particular forum and (D) the likely difficulties in managing a
class action.
Here, Defendants do not dispute that a class action is superior to
other available methods for the fair and efficient adjudication of
this issue. In this case, because the misrepresentation claims are
common to the class, involve small sums of money, $0.61 cent
premium, and do not rely on individual determinations, a class
action is the superior method of efficiently and fairly
adjudicating Plaintiff and the class members' claims in this case.
Therefore, the Court finds the superiority requirement of Rule
23(b)(3) met as to the UCL, FAL, CLRA and breach of express
warranty claims.
Based on this, the Court grants the Plaintiff's motion for class
certification pursuant to Rule 23(b)(3) on the UCL, FAL and CLRA
claims.
A full-text copy of the District Court's November 29, 2018 Order is
available at https://tinyurl.com/y7mrfvto from Leagle.com.
Crystal Hilsley, on behalf of herself and all others similarly
situated, Plaintiff, represented by David Elliot --
davidelliot@elliotlawfirm.com -- The Elliott Law Firm, Michael
Houchin -- mike@consumersadvocates.com -- Law Offices of Ronald A.
Marron, Ronald Marron -- ron@consumersadvocates.com -- Law Office
of Ronald Marron & Tania Babaie -- tania@consumersadvocates.com --
Law Offices of Ronald A Marron.
Ocean Spray Cranberries, Inc. & Arnold Worldwide LLC, Defendants,
represented by Ricky Lynn Shackelford -- shackelfordr@gtlaw.com --
Greenberg Traurig, LLP.
The Nielsen Company (U.S.), LLC, Miscellaneous Party, represented
by Heather Elizabeth Belville -- heatherbelville@quinnemanuel.com
-- Quinn Emanuel Urquhart & Sullivan, LLP & Robert James Slobig --
kjs@kpclegal.com -- Torshen, Slobig & Axel, Ltd., pro hac vice.
ONE STOP: Aguilar et al. Seek unpaid wages under FLSA
-----------------------------------------------------
JESSICA AGUILAR and ALMA DELIA LOPEZ, Individually and On Behalf of
All Others Similarly Situated, the Plaintiffs. vs ONE STOP
PERSONNEL SERVICES, LIMITED LIABILITY PARTNERSHIP, and JOE MURCIA,
the Defendants, Case No. 7:18-cv-00395 (S.D. Tex., Dec. 14, 2018),
seeks for unpaid wages under the Fair Labor Standards Act.
According to the complaint, the Plaintiffs were employed by
Defendants. The Plaintiffs typically worked between about 55 and 65
hours or more each workweek, but One Stop paid them flat salaries
that amounted to less than the minimum wage, refused to pay them
the required overtime pay, and made unlawful deductions from their
pay. One Stop further violated the FLSA by failing to accurately
record the hours of Plaintiffs worked, the lawsuit says.
One Stop is in the employment agencies industry in Frisco,
Texas.[BN]
Counsel for Plaintiffs:
Colleen Mulholland, Esq.
Aaron Johnson, Esq.
Shana Khader, Esq.
EQUAL JUSTICE CENTER AND
TRANSNATIONAL WORKER RIGHTS CLINIC
8301 Broadway Street, Ste. 309
San Antonio, TX 78209
Telephone: (210) 308-6222, ext. 101
Facsimile: (210) 308-6223
E-mail: cmulholland@equaljusticecenter.org
ajohnson@equaljusticecenter.org
skhader@equaljusticecenter.org
PACIFIC GAS: Faces Class Action Over Deadly Wildfire
----------------------------------------------------
Amanda Bronstad, writing for The Recorder, reports that lawyers in
California have filed the first class action against Pacific Gas &
Electric over a deadly wildfire that killed 88 people and destroyed
14,000 buildings last month. [GN]
PACIFIC GAS: Lieff Cabraser, Edelson File Wildfire Class Action
---------------------------------------------------------------
Lieff Cabraser Heimann & Bernstein and Edelson PC have filed a
class action lawsuit in California Superior Court in San Francisco
against Pacific Gas & Electric (PG&E) for the devastating property
damage, economic losses, and disruption to their homes, businesses,
and livelihoods caused by the Camp wildfire ("Camp Fire"), started
on November 8 by unsafe electrical infrastructure in Butte County
owned, operated, and maintained by PG&E. The fire virtually leveled
the town of Paradise, destroying nearly 14,000 homes and causing at
least 88 deaths and many injuries.
Plaintiffs Kevin Burnett and Leslie Moore; Darwin Crabtree and
Sandra Crabtree; Joseph Garfield; Robert Eldridge; and Benjamin
Greenwald d/b/a Greenwald Pest Defense, individually and on behalf
of all others similarly situated, allege in their class action
complaint that despite PG&E's knowledge that electrical
infrastructure was aging, unsafe, and vulnerable to environmental
conditions, PG&E failed to take action that could have prevented
the deadliest and most destructive wildfire in California's
history. By the time the fire was finally contained on November
25th, more than 150,000 acres (230 square miles) had been decimated
– an area about five times the size of San Francisco.
The Camp Fire, Most Destructive Wildfire in CA History: Large-Scale
Evacuations, Lives, Homes, and Businesses Lost
In November 2018, the deadliest and most destructive wildfire in
California history razed more than 150,000 acres across Butte and
Plumas Counties, destroying homes, businesses, and lives. The Camp
Fire started just before sunrise on November 8th near the town of
Pulga. It moved rapidly west, virtually leveling the town of
Paradise, with at least 88 lives lost, countless others injured,
and 25 people still missing, as of the date of this filing. It also
completely destroyed nearly 14,000 homes and hundreds of commercial
buildings, along with everything in them. Tens of thousands of
people, including Plaintiffs and the Class, are now displaced from
their homes, many forced to live in shelters, tents, or their cars.
They are left not knowing where they will sleep, when they will
have a roof over their heads again, or whether they will be able to
rebuild their lives.
"This is a disaster of a scale unprecedented in California," said
Elizabeth Cabraser, founding partner of Lieff Cabraser and counsel
for the plaintiffs and the class. "And with the information alleged
in the complaint, that the fire was started by unsafe PG&E
equipment, it becomes a tragedy that could have, and should have,
been avoided had PG&E done their legal duty of safely operating and
maintaining their power infrastructure."
"We intend to prove that PG&E was well aware that its substandard
and neglected infrastructure could cause devastation on this scale.
There is simply no excuse for PG&E's conscious disregard for the
lives and rights of our neighbors in the Butte County community,
and the members of this plaintiff class must be compensated swiftly
and fairly so that they can begin the monumental task of rebuilding
their lives," said Rafey S. Balabanian, Edelson PC's Managing
Partner. "While our complaint alleges that PG&E has failed to make
necessary improvements after facing similar legal action multiple
times in the past, it is our hope that this time the company will
finally change its practices, and that a tragedy like the Camp Fire
can never happen again."
California law mandates that PG&E and other utilities properly
maintain their electrical infrastructure to ensure safe operation,
including by adequately designing, constructing, monitoring,
maintaining, operating, repairing, replacing, and/or improving
power lines, poles, transformers, conductors, insulators,
reclosers, and/or other electrical equipment. This duty includes
inspecting and managing vegetation around power lines and/or other
electrical equipment, given the foreseeable risk of such vegetation
coming into contact with the equipment and thereby starting fires.
"Despite knowledge that its infrastructure was aging, unsafe, and
vulnerable to weather and environmental conditions, PG&E failed to
fulfill these duties, and failed to take preventative measures in
the face of known, high-risk weather conditions to mitigate the
risk of fire, including by de-energizing its electrical equipment,"
notes Lieff Cabraser partner Lexi Hazam, who also represents the
plaintiffs in the case. "PG&E's failures here led to the deadliest
and most destructive wildfire in California history."
Catastrophic Damage and Loss Allegations in the Complaint
As alleged in the Complaint, the catastrophic damage and
extraordinary loss of life of the Camp Fire could have been
prevented. Indeed, PG&E's failing infrastructure and its inadequate
efforts to maintain its equipment and mitigate risk have resulted
in numerous previous tragedies, and PG&E has been sanctioned
multiple times for virtually identical misconduct. As the Complaint
further alleges, despite notice of its past failures and even in
the face of public reprimand, PG&E has continued to cut corners and
put profits over safety, and continued to operate dangerous
equipment without adequate risk management controls in place.
"After a difficult and terrifying evacuation, we found out our home
had been completely destroyed by the fire," said Kevin Burnett.
"The stress, the loss, are almost more than we can bear, and to
then learn PG&E's equipment likely caused the fire, we just feel
broken. I just lost thirty-five years of my life. Everything I
worked for since I moved to California went up in smoke."
"Beyond the terrible loss of life and destruction of homes, this
fire has destroyed hundreds of businesses and cost thousands of
people their jobs and livelihoods," notes plaintiff Benjamin
Greenwald, who suffered damage and losses from the fire. "It will
take years for these businesses to return, if they can even ever
reestablish themselves in these communities."
The Complaint provides comprehensive detail on how PG&E caused
Plaintiffs and the Class to suffer devastating property damage,
personal and economic losses, and disruption to their homes,
businesses, livelihoods, and wellbeing. The lawsuit includes claims
for negligence, inverse condemnation, trespass, private nuisance,
premises liability, negligent interference with prospective
economic advantage, violations of the California Public Utilities
Code, and violations of the California Health & Safety Code, and
seeks damages and compensation for the costs of repair,
depreciation, and/or replacement of damaged and destroyed personal
and real property, lost wages, earning capacity, and business
profits, double or treble damages for wrongful injuries to timber,
trees, and underwood, and general and punitive damages. [GN]
PAX VILLA: Fortuna Seeks Unpaid, Underpaid Overtime Wages
---------------------------------------------------------
Mayra Yvette Fortuna, on behalf of herself and all others similarly
situated, Plaintiff, v. Pax Villa, Inc., Defendant, Case No.
7:18-cv-00396 (S.D. Tex., December 17, 2018) is a collective action
seeking to recover the unpaid and/or underpaid overtime wages and
other damages owed to her and Defendants's other similarly-situated
employees and for intentionally preventing its hourly employees
from recording and reporting all of their hours so that it can
avoid paying them overtime wages as required by the Fair Labor
Standards Act.
Fortuna was employed by Pax Villa as a registered nurse. She began
working in August 2018. She was initially paid as a salaried
employee. In performing her duties as a nurse, Fortuna was an
employee engaged in commerce and/or in the production of goods for
commerce and/or an employee who handled goods or materials that had
been moved in or produced for commerce within the meaning of the
FLSA. Fortuna regularly worked in excess of forty hours in a
workweek for Pax Villa.
Pax Villa was well aware that Fortuna was working more than 40
hours a week. Fortuna was required to "clock-out" when her shift
ended yet she would regularly stay and continue working after
having clocked out. She would also spend several hours a week
working from home on her notes for the patients she had seen and
cared for. At no time, however, did Pax Villa pay Fortuna
one-and-a-half times her regular hourly rate when she would work
more than forty hours a week, the complaint asserts.
In May of 2018, Fortuna was reclassified to a salaried employee and
was paid a fixed amount. She continued to work more than forty
hours a week and did not receive overtime wages despite her duties
and responsibilities remaining the same, says the complaint.
Fortuna is a former hourly employee of Pax Villa.
Pax Villa is chartered as a corporation in TX, with the goal of
providing palliative, rather than curative care to hospice
patients, where each patient gets an individualized plan of care
for himself (herself) and the family.[BN]
The Plaintiff is represented by:
Ryan C. Solis, Esq.
1410 W. Dove Avenue
McAllen, TX 78504
Phone: (956) 686-9600
Facsimile: (956) 686-7033
Email: ryan@rsolislaw.com
PCM SALES: Fails to Pay OT Wages Under FLSA, Hirsch Suit Claims
---------------------------------------------------------------
JASON HIRSCH, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY
SITUATED v. PCM SALES, INC., Case No. 3:18-cv-03224-S (N.D. Tex.,
December 6, 2018), arises from the Defendant's alleged failure to
pay overtime compensation under the Fair Labor Standards Act.
PCM Sales, Inc., is a foreign corporation formed and existing under
the laws of the state of California and maintains and operates its
principal office in California. The Defendant is a direct
marketing company that offers technology products and services to
commercial customers.[BN]
The Plaintiff is represented by:
Douglas B. Welmaker, Esq.
MORELAND VERRETT, PC
2901 Bee Cave Rd, Box L
Austin, TX 78746
Telephone: (512) 782-0567
Facsimile: (512) 782-0605
E-mail: doug@morelandlaw.com
PDAM TIRTA: YLKI Files Class Action Over Water Price Hike
---------------------------------------------------------
TheJakartaPost reports that the Indonesian Consumers Foundation
(YLKI) in Jambi has filed a class action against regional tap water
company PDAM Tirta Mayang for increasing the price of water by 100
percent.
Eight lawyers of the YLKI team in Jambi filed the lawsuit on Nov.
26, saying in their letter to Jambi District Court head Eddy
Pramono that they demanded legal certainty for consumers.
"We are advocating on behalf of the people," the team leader, Damai
Idianto, said on Dec. 4.
PDAM Tirta Mayang increased the rate from Rp 2,000 (14 US cent) per
cubic meter to Rp 4,000 per cubic meter on Aug. 15, charging 72,000
customers across Jambi twice as much for the tap water they
consume.
The first trial for the class action was held on Dec. 4 at the
Jambi District Court, but it was adjourned to Dec. 11. [GN]
PEPSICO INC: Oat Products Contain Glyphosate, Suit Claims
---------------------------------------------------------
LAWERENCE BRANDON, individually and on behalf of all others
similarly situated, the Plaintiff, vs. PEPSICO, INC., a North
Carolina Corporation and THE QUAKER OATS COMPANY, a New Jersey
Corporation, the Defendants, Case No. 1:18-cv-08234 (N.D. Ill.,
Dec. 12, 2018), alleges that Defendants misrepresented and
deceptively concealed, suppressed, and/or omitted material
information known to it concerning food products which has caused
damage and injury to Plaintiff and the Class.
According to the complaint, the Defendants manufacture, market,
sell, and distribute various food products under the Quaker Oats
brand. This lawsuit concerns 17 of those products: (1) Quaker
Dinosaur Eggs – Brown Sugar Instant Oatmeal; (2) Quaker Steel Cut
Oats; (3) Quaker Old Fashioned Oats; (4) Quaker Simply Granola
Oats, Honey, Raisins & Almonds; (5) Quaker Instant Oatmeal,
Cinnamon & Spice; (6) Quaker Instant Oatmeal, Apples & Cinnamon;
(7) Quaker Real Medleys Super Grains Banana Walnut; (8) Quaker
Overnight Oats, Raisin, Walnut & Honey Heaven; (9) Quaker Overnight
Oats Unsweetened with Chia Seeds; (10) Quaker Oatmeal Squares,
Brown Sugar; (11) Quaker Oatmeal Squares, Honey Nut; (12) Quaker
Simply Granola Oats, Honey & Almonds; (13) Quaker Breakfast Flats
Crispy Snack Bars, Cranberry Almond; (14) Quaker Chewy Chocolate
Chip; (15) Quaker Chewy S'mores; (16) Quaker Breakfast Squares Soft
Baked Bars, Peanut Butter; and (17) Quaker Chewy Peanut Butter
Chocolate Chip (the "Products").
In marketing the Products, Defendants seek to appeal to the
consuming public's ever-growing health consciousness and increasing
appetite for nutritious, wholesome foods that will benefit their
health and avoidance of highly-processed foods with non-healthy
attributes such as GMOs, artificial additives, gluten, added
sugars, and hydrogenated oils. The Defendants make several detailed
representations about the health attributes of the Products on the
front of the Product packages. For example, Defendants represent on
the front of the Old Fashioned Oats Product that the Product is
"100% Whole Grain" and verified "NON GMO", that it provides
"Lasting Energy" and a "Good source of fiber" to help support a
healthy digestive system", and that it "can help reduce
cholesterol", and "may reduce the risk of heart disease".
The Defendants make one or more similar attribute representations
on the front of the other Product packages. These representations
are collectively referred to as the "Product Health
Representations". The Product Health Representations lead
reasonable consumers to believe the Products will foster their
"good health" and not pose a safety risk to or potentially harm
their health. However, recent testing by the Environmental Working
Group (EWG), a nonprofit organization dedicated to protecting human
health and the environment, revealed that Defendants' Products
contain glyphosate, with Quaker Old Fashioned Oats having the
highest levels of the 45 products tested, the lawsuit says.[BN]
Attorneys for Plaintiff:
Todd L. McLawhorn, Esq.
Stewart M. Weltman, Esq.
Michael Chang, Esq.
SIPRUT PC
www.siprut.com
17 North State Street, Suite 1600
Chicago, IL 60602
Telephone: (312) 236 0000
Facsimile: 312.754.9616
E-mail: tmclawhorn@siprut.com
sweltman@siprut.com
mchang@siprut.com
- and -
Mila F. Bartos, Esq.
FINKELSTEIN THOMPSON LLP
www.finkelsteinthompson.com
3201 New Mexico Avenue, Suite 395
Washington, D.C. 20016
Telephone: (202) 337 8000
Facsimile: 202.337.8090
PETRO RIVER: Appeal in in Donelson-Friend Suit Still Pending
------------------------------------------------------------
Petro River Oil Corp. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on December 17, 2018, for the
quarterly period ended October 31, 2018, that the appeal filed by
the plaintiffs in the case entitled, Martha Donelson and John
Friend, et al. v. United States of America, Department of the
Interior,
Bureau of Indian Affairs and Devon Energy Production, LP, et al.,
is still pending.
On August 11, 2014, Martha Donelson and John Friend amended their
complaint in an existing lawsuit by filing a class action complaint
styled: Martha Donelson and John Friend, et al. v. United States of
America, Department of the Interior, Bureau of Indian Affairs and
Devon Energy Production, LP, et al., Case No. 14-CV-316-JHP-TLW,
United States District Court for the Northern District of Oklahoma
(the "Proceeding").
The plaintiffs added as defendants 27 specifically named operators,
including Spyglass, as well as all Osage County lessees and
operators who have obtained a concession agreement, lease or
drilling permit approved by the Bureau of Indian Affairs ("BIA") in
Osage County allegedly in violation of National Environmental
Policy Act ("NEPA").
Plaintiffs seek a declaratory judgment that the BIA improperly
approved oil and gas leases, concession agreements and drilling
permits prior to August 12, 2014, without satisfying the BIA's
obligations under federal regulations or NEPA, and seek a
determination that such oil and gas leases, concession agreements
and drilling permits are void ab initio.
Plaintiffs are seeking damages against the defendants for alleged
nuisance, trespass, negligence and unjust enrichment. The potential
consequences of such complaint could jeopardize the corresponding
leases.
On October 7, 2014, Spyglass, along with other defendants, filed a
Motion to Dismiss the August 11, 2014 Amended Complaint on various
procedural and legal grounds.
Following the significant briefing, the Court, on March 31, 2016,
granted the Motion to Dismiss as to all defendants and entered a
judgment in favor of the defendants against the plaintiffs. On
April 14, 2016, Spyglass with the other defendants, filed a Motion
seeking its attorneys' fees and costs. The motion remains pending.
On April 28, 2016, the Plaintiffs filed three motions: a Motion to
Amend or Alter the Judgment; a Motion to Amend the Complaint; and a
Motion to Vacate Order. On November 23, 2016, the Court denied all
three of Plaintiffs' motions. On December 6, 2016, the Plaintiffs
filed a Notice of Appeal to the Tenth Circuit Court of Appeals.
That appeal is pending as of the filing date of these financial
statements.
Petro River said, "There is no specific timeline by which the Court
of Appeals must render a ruling. Spyglass intends to continue to
vigorously defend its interest in this matter."
No further updates were provided in the Company's SEC report.
Petro River Oil Corp., an independent energy company, focuses on
the exploration and development of conventional oil and gas assets.
It primarily holds interests in the Mid-Continent Region in
Oklahoma, including Osage County and Kay County, Oklahoma. The
company is based in New York, New York.
PG&E CORPORATION: Faces Suit Over Damage Caused by Wildfire
------------------------------------------------------------
Kevin Burnett and Leslie Moore, Darwin Crabtree and Sandra
Crabtree, Joseph Garfield, Robert Eldridge and Benjamin Greenwald,
individually and on behalf of all others similarly situated,
Plaintiff, v. PG&E Corporation and Pacific Gas & Electric Company,
Defendants, Case No. CGC- 18-571849, (Cal. Super., December 5,
2018) seeks redress for negligence, inverse condemnation, trespass,
private nuisance, public nuisance, premises liability including
violations of Public Utilities Code Section 2106 and Health &
Safety Code Section 13007.
PG&E Corporation is an energy-based holding company and is the
parent company of Pacific Gas & Electric Company. PG&E is into the
generation, distribution and transmission of electricity and
natural gas. In November 2018, a destructive wildfire razed across
parts of Butte and Plumas Counties, destroying homes, businesses,
and lives. Said fire was allegedly caused by unsafe electrical
infrastructure owned, operated, and maintained by PG&E Corporation
and Pacific Gas & Electric Company. [BN]
Plaintiff is represented by:
Elizabeth J. Cabraser, Esq.
Robert J. Nelson, Esq.
Lexi J. Hazam, Esq.
Fabrice N. Vincent, Esq.
Abby R. Wolf, Esq.
Evan J. Ballan (SBN 318649), Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
- and -
Rafey S. Balabanian, Esq.
J. Aaron Lawson, Esq.
Todd Logan, Esq.
Lily Hough, Esq.
EDELSON PC
123 Townsend Street, Suite 100
San Francisco, CA 94107
Telephone: (415) 212-9300
Facsimile: (415) 373-9435
Email: alawson@edelson.com
rbalabanian@edelson.com
PORTER MCGUIRE: Bid to Dismiss Improper Foreclosure Claim Denied
----------------------------------------------------------------
The United States District Court for the District of Hawaii issued
an Order denying Defendant's Motion to Dismiss Count V (Improper
Foreclosure Claim) of the Third Amended Complaint in the case
captioned BENITA J. BROWN, ET AL., Plaintiffs, v. PORTER McGUIRE
KIAKONA & CHOW, LLP, a Hawaii limited liability partnership, as an
individual entity; THE ASSOCIATION OF APARTMENT OWNERS OF TERRAZZA/
CORTEBELLA/LAS/BRIAS/ TIBURON, as an individual entity and on
behalf of all others similarly situated; DOE DEFENDANTS 1-100,
Defendants. No. Civil 17-00554 LEK-KSC. (D. Haw.)
Defendant the Association of Apartment Owners of
Terrazza/Cortebella/Las Brisas/Tiburon (Terrazza AOAO) filed its
Motion to Dismiss Count V of the Third Amended Complaint.
Brown purchased Apartment No. 176 in the condominium project known
as Las Brisas, Phase 15 in Ewa Beach (Las Brisas). Las Brisas was
managed by the Terrazza AOAO. Brown purchased the Unit for
approximately $270,000, and obtained a $262,000 loan secured by a
mortgage on the Unit to do so. In order to collect its debt, the
Terrazza AOAO, through Defendant Porter McGuire Kiakona & Chow, LLP
(PMKC), initiated a nonjudicial foreclosure pursuant to the former.
Brown brings this case as a putative class action by a plaintiff
class, which she represents, against PMKC and a putative defendant
class, which the Terrazza AOAO represents.
Brown argues the members of the defendant class engaged in
nonjudicial foreclosures under Chapter 667, Part I, even though
they did not hold mortgages with powers of sale. She alleges the
defendant class did so in order to avoid the consumer protection
provisions in Part II. Brown asserts all of these foreclosures were
wrongful and/or invalid.
Brown's wrongful foreclosure claim alleges: AOAO Defendants were
not authorized or entitled to conduct a nonjudicial foreclosure or
power of sale under Part I. As such, the foreclosure notices sent
by AOAO Defendants were procedurally defective, and the resulting
sales that occurred were unlawful and constituted wrongful
foreclosures.46. As a result of the wrongful foreclosures, AOAO
Defendants stole, converted, and/or wrongfully dispossessed
plaintiff and plaintiff class members of their properties.
Thus, the focus of Brown's wrongful foreclosure claim is the
alleged failure to comply with Chapter 667, Part I. This Court
previously ruled that the elements of Brown's wrongful foreclosure
were sufficiently pled against the Terrazza AOAO.
In contrast, Brown's Improper Foreclosure claim alleges, inter
alia: AOAO Defendants were required to use all fair and reasonable
means to obtain the best possible prices for the properties of
Plaintiff and plaintiff class members but they failed to do so,
rendering AOAO Defendants' foreclosures wrongful.68. Plaintiff also
seeks and requests a judgment declaring that AOAO Defendants'
foreclosures were not regularly or fairly conducted and that AOAO
Defendants did not pay adequate prices for the properties of
Plaintiff and plaintiff class members.
Thus, the focus of Brown's Improper Foreclosure claim is the
Terrazza AOAO's alleged breach of its common law duty to conduct
the non-judicial foreclosure sale in a fair and reasonable manner
and its duty to exercise reasonable diligence and good faith in
attempting to obtain the best price.
The Hawai'i Supreme Court did not use the words improper
foreclosure claim in Hungate, but it clearly recognized that there
is a claim for violation of the common law duties described in
Ulrich and Kondaur which is separate and distinct from a claim
alleging violations of Chapter 667, i.e. a wrongful foreclosure
claim. The supreme court stated, under Kondaur and Ulrich, in
addition to the duties required under the now-repealed HRS Section
667 Part I, a mortgagee has a duty to use 'fair and reasonable
means in obtaining the best prices for the property on sale.' Thus,
whatever label the claim is given, Hawai'i law recognizes a claim
that a foreclosing mortgagee violated the common law duties
articulated in Ulrich and its progeny.
This Court therefore rejects the Terrazza AOAO's argument that
Brown's Improper Foreclosure claim is not recognized under Hawai'i
law. Moreover, this Court concludes the Third Amended Complaint
pleads sufficient factual allegations to state a plausible claim
for violation of the Terrazza AOAO's common duties under Ulrich and
its progeny. To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.
A full-text copy of the District Court's November 29, 2018 Order is
available at https://tinyurl.com/y78mgavt from Leagle.com.
Benita J. Brown, as an individual and on behalf of all others
similarly situated, Plaintiff, represented by Chanelle M.C.
Fujimoto -- cfujimoto@imanaka-asato.com -- Imanaka Asato, LLLC,
Isam C. Khoury -- Ikhoury@ckslaw.com -- Cohelan Khoury & Singer,
pro hac vice, James J. Hill -- jhill@ckslaw.com -- Cohelan Khoury &
Singer, pro hac vice, Michael L. Iosua -- miosua@imanaka-asato.com
-- Imanaka Asato, LLLC, Steven K.S. Chung --
schung@imanaka-asato.com -- Imanaka Asato, LLLC, Timothy G. Blood
-- tblood@bholaw.com -- Blood Hurst & O'Reardon, LLP, pro hac vice,
Timothy D. Cohelan -- tcohelan@ckslaw.com -- Cohelan Khoury &
Singer, pro hac vice, Li Li, Imanaka Asato, LLLC & Margaret LeAnn
Webster, Imanaka Asato LLLC.
Porter McGuire Kiakona & Chow, LLP, a Hawai'i limited liability
partnership, as an individual entity, Defendant, represented by
Duane R. Miyashiro -- dmiyashiro@cwlfirm.com -- Cox, Wootton,
Lerner, Griffin & Hansen LLP & Jamie Christine S. Madriaga --
jmadriaga@cwlfirm.com -- Cox, Wootton, Lerner, Griffin & Hansen
LLP.
PPL CORP: Talen Montana Retirement Plan Suit Moved to D. Montana
----------------------------------------------------------------
The case captioned Talen Montana Retirement Plan and Talen Energy
Marketing, LLC, individually and on behalf of all others similarly
situated, Plaintiffs v. PPL Corporation, PPL Capital Funding Inc.,
PPL Electric Utilities Corp., PPL Energy Funding Corp., Paul A.
Farr, Mark F. Wilten, Peter J. Simonich, William H. Spence, Rodney
C. Adkins, Frederick M. Bernthal, John W. Conway, Philip G. Cox,
Steven G. Elliott, Louise K. Goeser, Stuart E. Graham, Stuart
Heydt, Raja Rajamannar, Craig A. Rogerson, Natica von Althann,
Keith H. Williamson, Armando Zagalo de Lima and Does 1-50,
Defendants, Case No. DV 18-00056, was transferred from the
Sixteenth Judicial District Court, Rosebud County to the U.S.
District Court for the District of Montana on Deceber 10, 2018, and
assigned Case No. 1:18-cv-00174-SPW..
The docket of the case states the nature of suit as breach of
contract.
The PPL Corporation is an energy company headquartered in
Allentown, Pennsylvania, USA. It currently controls about 8,000
megawatts of regulated electric generating capacity in the United
States and delivers electricity to 10.5 million customers in
Pennsylvania, Kentucky, and Great Britain.[BN]
The Plaintiffs are represented by:
Robert L. Sterup, Esq.
BROWN LAW FIRM, P.C. - BILLINGS
315 North 24th Street
PO Box 849
Billings, MT 59103-0849
Tel: (406) 248-2611
Fax: 248-3128
Email: rsterup@brownfirm.com
The Defendants are represented by:
Elizabeth L. Griffing, Esq.
AXILON LAW GROUP, PLLC – HELENA
Power Block, Ste. 4P
7 West 6th Ave.
Helena, MT 59601
Tel: (406) 457-5465
Fax: (406) 447-4255
Email: bgriffing@axilonlaw.com
- and –
Tom Singer, Esq.
Axilon Law Group, PLLC
P O Box 987
Billings, MT 59103-0987
Tel: (406) 294-9466
Fax: (406) 294-9468
Email: tsinger@axilonlaw.com
PREMIERE CARE: Underpays Caregivers, Lee Suit Alleges
-----------------------------------------------------
NINA LEE, individually and on behalf of all others similarly
situated, Plaintiff v. PREMIERE CARE MANAGEMENT SPECIALISTS, LLC;
and DOES 1-100, Defendants, Case No. RG18929298 (Cal. Super.,
Alameda Cty., Nov. 15, 2018) is an action against the Defendants
for unpaid regular hours, overtime hours, minimum wages, wages for
missed meal and rest periods.
The Plaintiff Lee was employed by the Defendants as caregiver.[BN]
The Plaintiff is represented by:
Michael Malk, Esq.
MICHAEL MALK, ESQ., APC
1180 South Beverly Drive, Suite 302
Los Angeles, CA 90035
Telephone: (310) 203-0016
Facsimile: (310) 499-5210
E-mail: MM@MALKLWFIRM.COM
PRIME COMMUNICATIONS: Fryer Sues Over Unpaid Overtime Wages
-----------------------------------------------------------
Daniel Fryer, individually and on behalf of all others similarly
situated, Plaintiff, v. Prime Communications, LP, Defendant, Case
No. 4:18-cv-00927-DPM (E.D. Ark., December 17, 2018) is an action
under the Fair Labor Standards Act, and the Arkansas Minimum Wage
Act, for declaratory judgment, monetary damages, liquidated
damages, prejudgment interest, and costs, including reasonable
attorneys' fees, as a result of Defendant's failure to pay
Plaintiff and other hourly paid Store Managers lawful overtime
compensation for hours worked in excess of 40 hours per week.
Plaintiff worked for Defendant as a Store Manager in Monroe,
Louisiana from May 27, 2014, until approximately December of 2017.
Plaintiff relocated to Defendant's Little Rock store where he
continued working as a Store Manager until his employment ended on
November 30, 2018. Plaintiff and other Store Managers regularly
worked in excess of 40 hours per week throughout their tenure with
Defendant.
Plaintiff and other Store Managers were classified as hourly
employees and paid an hourly rate. Plaintiff and other Store
Managers were also paid non-discretionary money awards and bonuses
up to once per month when certain objective and measurable criteria
were met. In addition, Defendant paid Plaintiff and other Store
Managers 1.5 times their base hourly rate, exclusive of the
non-discretionary bonus, for each hour they worked over 40 in a
workweek. However, Defendant did not include the bonuses and money
awards paid to Plaintiff and other Store Managers in their regular
rates when calculating their overtime pay, the complaint asserts.
Defendant violated the FLSA and AMWA by not including the
non-discretionary bonuses of Plaintiff and other Store Managers in
their regular rate when calculating their overtime pay, says the
complaint.
Plaintiff Daniel Fryer is a resident and domiciliary of the State
of Arkansas, who worked for Defendant from May 27, 2014, until
November 30, 2018, as a Store Manager.
Prime Communications, LP is a foreign limited partnership,
registered to do business in the State of Arkansas, with a
principal address of 300 S Spring Street, Suite 900, Little Rock,
Arkansas 72201.[BN]
The Plaintiff is represented by:
Sean Short, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Phone: (501) 221-0088
Facsimile: (888) 787-2040
Email: sean@sanfordlawfirm.com
josh@sanfordlawfirm.com
PSC INC: Court Certifies Miller Class in CPA Suit
-------------------------------------------------
The United States District Court for the Western District of
Washington, Tacoma, issued an Order granting Plaintiffs' Motion for
Class Certification in the case captioned KIMBERLY MILLER, BRIANA
HOUSER, and DEAN BUCHHOLZ, on behalf of themselves and on behalf of
others similarly situated, Plaintiff, v. P.S.C., INC., d/b/a PUGET
SOUND COLLECTIONS, and DOES ONE THROUGH TEN, Defendant. Case No.
3:17-cv-05864-RBL. (W.D. Wash.).
Plaintiffs Kimberly Miller, Briana Houser, and Dean Buchholz are
individuals who owed unpaid medical bills and made payments to
Defendant Puget Sound Collections, or P.S.C., Inc. After contacting
the Plaintiffs regarding their debts, P.S.C. required the
Plaintiffs to sign Stipulation re Balance Owed and for Judgment and
Stipulated Judgment forms in order to enter monthly payment plans.
When the Plaintiffs missed a payment or refused to enter a revised
agreement, P.S.C. filed these forms in court and obtained judgments
against the Plaintiffs without serving a summons and complaint.
Plaintiffs claim that P.S.C.'s practice of using these stipulated
judgment forms violates the Washington Consumer Protection Act
(CPA) and Fair Debt Collection Practices Act (FDCPA).
Plaintiffs seek certification of a class entitled to relief under
the CPA, as well as a subclass seeking relief under the FDCPA.
Plaintiffs propose the following class definitions:
Class: All persons who returned to Defendants a signed
Stipulation Re Balance Owed and For Judgment, or Stipulated
Judment, or substantially similar debt collection fonn, at any time
since September 18. 2013.
FDCPA Sub-Class: All persons in the Class whose alleged debt was
incurred primarily for personal, family, or household purposes and
from whom P.S.C. collected or attempted to collect a debt using a
Stipulation Re Balance Owed and For Judgment or Stipulated
Judgment, or substantially similar debt collection form, at any
time since September 18, 2016.
Numerosity
The Plaintiffs allege that P.S.C. received signed Stipulated
Judgment Forms from at least 4,276 Washington consumers, and P.S.C.
does not challenge this. Motion, Numerosity is therefore satisfied
as to the class. However, P.S.C. argues that Plaintiffs have failed
to prove that the FDCPA subclass is sufficiently numerous. Indeed,
Plaintiffs did not address numerosity with respect to the subclass
in their Motion. However, in the Reply, Plaintiffs point to an
excerpt of P.S.C.'s data production showing that P.S.C. filed
stipulations for 57 consumers.
Given that all three named Plaintiffs incurred their debts
primarily for personal, family, or household purposes and that a
majority of P.S.C.'s accounts are individuals with medical debts,
Plaintiffs ask the Court to make a reasonable inference that the
FDCPA subclass contains at least 40 members.
Commonality
To satisfy Rule 23(a)'s common question of law or fact requirement,
the plaintiffs' claims must "depend upon a common contention that
is capable of classwide resolution. This means that determining the
truth or falsity of the contention will resolve an issue that is
central to the validity of each one of the claims in one stroke.
The key question is whether a classwide proceeding will generate
common answers apt to drive the resolution of the litigation. The
commonality requirement is "construed permissively. Indeed, it only
requires a single significant question of law or fact.
Here, in contrast, all of the alleged injuries stem from P.S.C.'s
use of the stipulated judgment forms. Furthermore, Plaintiffs also
suffered the same types of injuries, which take the form of being
subjected to the same deceitful collection practices, unlawful uses
of payments, and garnishments.
Nonetheless, P.S.C. claim that some class members may not have been
injured in his or her business or property. First, this argument
has no impact on the FDCPA subclass, which seeks statutory damages.
Second, Plaintiffs persuasively argue that most, if not all, class
members who signed stipulated judgment forms also suffered injury
in the form of payments that were wrongfully applied to costs and
interest, since the entire purpose of signing the stipulated
judgments was to establish a payment plan. If P.S.C.'s stipulation
forms violate the CAA, P.S.C. was statutorily prohibited from
applying payments in this way.
In light of this, there are sufficient common questions of law to
sustain both the class and subclass.
Typicality
Representative claims are typical if they are reasonably
co-extensive with those of absent class members; they need not be
substantially identical. This requirement ensures that `the named
plaintiff's claim and the class claims are so interrelated that the
interests of the class members will be fairly and adequately
protected in their absence.
Here, typicality is satisfied for both the class and subclass. As
previously mentioned, Plaintiffs all incurred debt primarily for
personal, family, or household purposes and signed stipulations
that were later filed by P.S.C. Their claims are therefore typical
of the FDCPA subclass, and P.S.C. does not argue otherwise.
With respect to the CPA class, P.S.C. argues that Plaintiffs'
claims are not typical because they suffered no injury to their
business or property, as required by RCW 19.86.090. However,
Plaintiffs have alleged that P.S.C. applied class members' payments
to interest and costs, which would be prohibited under the CAA if
P.S.C.'s stipulated judgment forms violate the statute. Plaintiffs
would have suffered this injury in a way that is co-extensive with
absent class members.
The Plaintiffs were therefore injured in a manner typical of the
class as a whole, and typicality is satisfied for both the class
and subclass.
Adequacy
To determine whether named plaintiffs will adequately represent a
class, courts must resolve two questions: (1) do the named
plaintiffs and their counsel have any conflicts of interest with
other class members and (2) will the named plaintiffs and their
counsel prosecute the action vigorously on behalf of the class?
As to the first requirement, P.S.C. rehashes its argument that the
named Plaintiffs cannot represent the class because they fail to
show that they are members of the putative CPA class.
However, this is incorrect. P.S.C. further contends that Buchholz
cannot adequately represent the class because he now lives in Italy
and cannot afford to return to appear in court. However, the
Plaintiffs counter that Buchholz testified that he could borrow
money to appear at trial, and that Plaintiffs' counsel could cover
travel costs if necessary. The Court is satisfied with this
response, and sees no other reason why the Plaintiffs would be
inadequate representatives.
Regarding the second requirement, P.S.C. does not challenge the
adequacy of Plaintiffs' counsel. The Plaintiffs have supplied
sufficient evidence of their litigation experience with class
actions. The adequacy requirement it thus satisfied here.
Rule 23(b) Requirements
Predominance of Common Questions over Individual Questions
The predominance inquiry tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.
Common questions are defined by the plaintiffs' ability to make a
prima facie showing using the same evidence. When one or more of
the central issues in the action are common to the class and can be
said to predominate, the action may be considered proper under Rule
23(b)(3) even though other important matters will have to be tried
separately, such as damages or some affirmative defenses peculiar
to some individual class members.
For reasons already discussed in relation to the 23(a)
requirements, common questions predominate. The elements of a CPA
claim are (1) an unfair or deceptive act or practice; (2) occurring
in trade or commerce; (3) that impacts the public interest; (4)
causes injury to the Plaintiffs' business or property; and (5)
causation.
The first three elements will be decided based on common questions
because Plaintiffs challenge P.S.C.'s general practice of using
stipulated judgments. It is likely that nearly all class members
made payments after signing a stipulated judgment (the
stipulation's purpose was to establish a payment plan), so all
suffered a common injury if those payments went toward costs,
interest, or other fees. P.S.C.'s electronic records should
indicate whether this is the case.
Individualized inquiries into actual damages and disgorgement are
insufficient to overwhelm these common issues. Furthermore, to the
extent that actual damages and disgorgement would stem from
unlawful or excessive garnishments, P.S.C. has not explained how
these types of injuries will differ significantly from one another.
The fact that Plaintiffs already owed money does not preclude
injury, and even if did, this would be true class-wide.
Superiority of the Class Action
The superiority requirement focuses on whether a class action is
the best method of dispute resolution in the particular case, and
necessarily involves a comparative evaluation of alternative
mechanisms.
The Plaintiffs identify several reasons why a class action is
desirable here, including the relatively small amounts at issue and
class members being unaware of their claims. P.S.C. does not
challenge the first three factors identified above, and the Court
sees no reasons why they are not met.
P.S.C. does challenge the manageability of the class. P.S.C. argues
that the CPA class presents an ascertainabiltiy problem because
determining whether individuals belong to the class will require
proof that each individual member suffered injury caused by P.S.C.
However, determining who belongs to the class as it is currently
defined would not require this analysis; rather, it would only
require determining which individuals returned stipulated judgment
forms within the specified time range, a task readily achievable
using P.S.C.'s records.
These vague allusions to the mysterious actions of class members
are unavailing. As Plaintiffs point out, the stipulated judgment
forms caused Plaintiffs to make payments to P.S.C. and allowed
P.S.C. to garnish their wages without serving a summons and
complaint. Class members would still be in debt no matter what
P.S.C. did, but how P.S.C. ended up with their money and any
additional amounts was a result of the stipulated judgment forms.
These individualized inquiries thus likely amount to damage
calculations, which do not defeat certification. Furthermore,
Plaintiffs persuasively argue that P.S.C. keeps records on the
payments it collects, including how they are applied and whether
garnishment proceedings were initiated. In short, the class action
format is superior to individual actions.
The Plaintiffs' Motion for Class Certification is granted as to the
CPA class as defined by Plaintiffs. Miller, Houser, and Buchholz
are appointed as class representatives, and the Terrell Marshall
Law Group and the Law Office of Joshua L. Turnham, PLLC, are
appointed as class counsel.
Certification as to the FDCPA subclass as defined by Plaintiffs is
reserved pending further briefing regarding the issue of
numerosity.
A full-text copy of the District Court's November 29, 2018 is
available at https://tinyurl.com/ybamy8fo from Leagle.com.
Kimberly Miller, Briana Houser & Dean Buchholz, on behalf of
themselves and on behalf of others similarly situated, Plaintiffs,
represented by Beth E. Terrell -- bterrell@tmdwlaw.com -- TERRELL
MARSHALL LAW GROUP PLLC, Blythe H. Chandler --
bchandler@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC &
Joshua L. Turnham -- joshua@turnhamlaw.com -- THE LAW OFFICE OF
JOSHUA L TURNHAM PLLC.
P.S.C., Inc., doing business as Puget Sound Collections, Defendant,
represented by Robert E. Sabido -- rsabido@cosgravelaw.com --
COSGRAVE VERGEER KESTER & Timothy J. Fransen --
tfransen@cosgravelaw.com -- COSGRAVE VERGEER KESTER.
REAL TIME RESOLUTIONS: Wade Alleges Wrongful Debt Collections
-------------------------------------------------------------
SAFIYAAH MUHAMMAD WADE, individually and on behalf of all others
similarly situated, Plaintiff v. REAL TIME RESOLUTIONS, INC.; and
JOHN DOES 1-25, Defendant, Case No. 2:18-cv-04954-NIQA (E.D. Pa.,
Nov. 15, 2018) seeks to stop the Defendant's unfair and
unconscionable means to collect a debt. The case is assigned to
Honorable Nitza I. Quinones Alejandro.
Real-Time Resolutions Inc. was founded in 1995. The company's line
of business includes collection and adjustment services on claims
and other insurance related issues. [BN]
The Plaintiff is represented by:
Robert P. Cocco, Esq.
LAW OFFICES OF ROBERT P. COCCO PC
1500 Walnut St., Suite 900
Philadelphia, PA 19102
Telephone: (215) 351-0200
Facsimile: (215) 922-3874
E-mail: rcocco@rcn.com
REGUS MANAGEMENT: 9th Cir. Affirms Class Certification Denial
-------------------------------------------------------------
The United States Court of Appeals, Ninth Circuit, issued a
Memorandum affirming the judgment of the District Court denying
Plaintiffs' Motion for Class Certification in the case captioned
CIRCLE CLICK MEDIA, LLC, a California limited liability company;
CTNY INSURANCE GROUP, LLC, a Connecticut limited liability company,
on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants, v. REGUS MANAGEMENT GROUP, LLC, a Delaware
limited liability company; REGUS BUSINESS CENTRE, LLC, a Delaware
limited liability company; REGUS, PLC, a Jersey, Channel Islands,
public limited company; HQ GLOBAL WORKPLACES, LLC, a Delaware
limited liability company, Defendants-Appellees. No. 17-15088. (9th
Cir.).
Plaintiffs Circle Click, LLC, Metro Talent, LLC, and CTNY Insurance
Group brought a putative class action, alleging that defendants
Regus Management Group, LLC, Regus Business Centre LLC, Regus plc,
and HQ Global Workplaces LLC violated California's unfair
competition (UCL) and false advertising laws (FAL) by
misrepresenting the actual cost of leasing their office spaces.
The district court denied the plaintiffs' motion for class
certification and their motion for reconsideration because the
plaintiffs failed to meet Federal Rule of Civil Procedure 23(b)'s
predominance requirement.
The district court properly denied class certification because the
plaintiffs' putative class presented individualized issues, not
subject to common proof, regarding whether the plaintiffs were
deceived.
In their motion for reconsideration, the plaintiffs' asserted for
the first time that their claims were based solely on the
defendants' sales documents. However, the Court have held
previously that a district court does not abuse its discretion in
disregarding arguments made for the first time in a motion for
reconsideration. Therefore, the district court did not abuse its
discretion in denying the plaintiffs' class certification motion
and motion for reconsideration.
A full-text copy of the Ninth Circuit's November 29, 2018
Memorandum is available at https://tinyurl.com/yajfb86m from
Leagle.com.
REV GROUP: Defending Suits over 2017 IPO
----------------------------------------
REV Group, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on December 19, 2018, for the
fiscal year ended October 31, 2018, that the company is facing
class action suits related to its January 2017 initial public
offering (IPO) and of purchasers in the company's secondary
offering of common stock in October 2017, as well as, for the
federal action, purchasers from October 10, 2017 through June 7,
2018.
A consolidated federal putative securities class action in the
Central District of California and a consolidated state putative
securities class action in the Eastern District of Wisconsin are
pending against the company and certain of its officers and
directors, each on behalf of a putative class of purchasers of the
company's common stock in or traceable to the Company's January
2017 initial public offering (IPO) and of purchasers in the
company's secondary offering of common stock in October 2017, as
well as, for the federal action, purchasers from October 10, 2017
through June 7, 2018.
The actions also name certain of the underwriters for the Company's
IPO or secondary offering as defendants. The federal and state
courts each consolidated multiple separate actions pending before
them, the first of which was filed on June 8, 2018. The actions
allege certain violations of the Securities Act of 1933 and, for
the federal action, the Securities Exchange Act of 1934.
Collectively, the actions seek certification of the putative
classes asserted and compensatory damages and attorneys' fees and
costs. The underwriter defendants have notified the Company of
their intent to seek indemnification from the Company pursuant to
the IPO underwriting agreement regarding the claims asserted with
respect to the IPO, and the Company expects the underwriters to do
the same in regard to the claims asserted with respect to the
October 2017 offering.
The Company and the other defendants intend to defend these
lawsuits vigorously. Additional lawsuits may be filed and, at this
time, the Company is unable to predict the outcome of the lawsuits,
the possible loss or range of loss, if any, associated with the
resolution of the lawsuits, or any potential effect that it may
have on the Company or its operations.
REV Group, Inc. designs, manufactures, and distributes specialty
vehicles in the United States, Canada, Europe, Africa, the Middle
East, Latin America, the Caribbean, and internationally. It
operates through three segments: Fire & Emergency, Commercial, and
Recreation. The company also provides aftermarket parts and
services. REV Group, Inc. was formerly known as Allied Specialty
Vehicles, Inc. and changed its name to REV Group, Inc. in November
2015. The company is headquartered in Milwaukee, Wisconsin.
RICE DRILLING: Accused by J&R Passmore of Trespassing Properties
----------------------------------------------------------------
J&R Passmore, LLC, Bruce Schuster, Jennifer Schuster, Brent Butler,
Doreen Butler, Ryan Feiock and Cheryl Feiock v. Rice Drilling D
LLC, EQT Corporation, Gulfport Energy Corporation, Gulfport
Appalachia LLC, XTO Energy Inc., Ascent Resources-Utica LLC, Antero
Resources Corporation, and Hess Ohio Developments, LLC, Case No.
2:18-cv-01587-EAS-KAJ (S.D. Ohio, December 6, 2018), is brought on
behalf of all other similarly situated persons in Ohio alleging
that the Defendants have knowingly trespassed into the Plaintiffs'
Point Pleasant formation and illegally removed and converted the
Plaintiffs' oil, natural gas, and hydrocarbon products.
The Plaintiffs and class members all own certain oil and gas
mineral rights located in Belmont County, Ohio.
The Defendants are multi-billion-dollar, sophisticated oil and gas
companies that each have drilled many horizontal wells in eastern
Ohio, and particularly in Belmont County, Ohio.
The Plaintiffs allege that the Defendants have drilled and/or
hydraulically fractured their horizontal wells on the Plaintiffs'
properties below the base of the Utica Shale formation, and are
producing oil and gas from Plaintiffs' properties from below the
base of the Utica Shale formation, including production from the
Point Pleasant formation.
Rice Drilling D, LLC, is a Delaware limited liability company that
is licensed to do business in the state of Ohio with a principal
place of business located in Pittsburgh, Pennsylvania. EQT
Corporation is the sole member of Rice Drilling.
Gulfport Energy Corporation is a Delaware corporation that is
licensed to do business in the state of Ohio and whose principal
place of business is located in Oklahoma City, Oklahoma. Gulfport
Appalachia LLC is a Delaware limited liability company that is
licensed to do business in Ohio and whose principal place of
business is located in Oklahoma City.
XTO Energy Inc. is a Delaware corporation that is licensed to do
business in Ohio and whose principal place of business is located
in Spring, Texas. Ascent Resources-Utica, LLC, is an Oklahoma
limited liability company that is licensed to do business in Ohio
with a principal place of business located in Oklahoma City.
Antero Resources Corporation is a Delaware corporation that is
licensed to do business in Ohio and whose principal place of
business is located in Denver, Colorado. Hess Ohio Developments,
LLC, is a Delaware limited liability company that is licensed to do
business in Ohio and whose principal place of business is located
in New York City.[BN]
The Plaintiffs are represented by:
Craig J. Wilson, Esq.
C.J. WILSON LAW, LLC
503 S. High St., Suite 200
Columbus, OH 43215
Telephone: (614) 723-9050
Facsimile: (614) 817-1590
E-mail: craig@cjwilsonlaw.com
- and -
John F. McCuskey, Esq.
Brian J. Warner, Esq.
Marc Mignault, Esq.
SHUMAN, MCCUSKEY & SLICER, PLLC
1411 Virginia Street East, Suite 200
Post Office Box 3953
Charleston, WV 25339
Telephone: (304) 345-1400
Facsimile: (304) 343-1826
E-mail: jmccuskey@shumanlaw.com
bwarner@shumanlaw.com
mmignault@shumanlaw.com
ROBERT A. SCHUERGER CO: Presley Alleges Wrongful Debt Collections
-----------------------------------------------------------------
DARRELL PRESLEY, individually and on behalf of all others similarly
situated, Plaintiff v. LAW OFFICES OF ROBERT A. SCHUERGER CO., LPA;
and JOHN DOES 1-25, Defendants, Case No. 2:18-cv-04953-RK (E.D.
Pa., Nov. 15, 2018) seeks to stop the Defendant's unfair and
unconscionable means to collect a debt.
The case is assigned to Honorable Robert F. Kelly.
Law Offices of Robert A Schuerger Co Lpa was founded in 2009. The
company's line of business includes providing full service legal
advice. [BN]
The Plaintiff is represented by:
Robert P. Cocco, Esq.
LAW OFFICES OF ROBERT P. COCCO PC
1500 Walnut St., Ste. 900
Philadelphia, PA 19102
Telephone: (215) 351-0200
Facsimile: (215) 922-3874
E-mail: rcocco@rcn.com
SAMSUNG ELECTRONICS: Phones' Pixel Count Misleading, Suit Claims
----------------------------------------------------------------
WAI KUEN CHU, KUN SOO KIM, DONNY VALLEJO, MANUEL TRINIDAD, and
RICHARD LEE, on behalf of themselves and all others similarly
situated, the Plaintiffs, v. SAMSUNG ELECTRONICS AMERICA, INC, and
SAMSUNG ELECTRONICS CO., LTD, the Defendants, Case No.
1:18-cv-11742 (S.D.N.Y., Dec. 14, 2018) seeks to enjoin Samsung
from continuing its unlawful practices regarding marketing of
phones and tablets with false pixel representation.
According to the complaint, Samsung advertises its phones and
tablets by claiming that their screens have various high
resolutions, i.e. that they have a high pixel count as tallied by
multiplying the screen height in pixels by the screen width in
pixels. However, Samsung's "Pentile" phones and tablets do not have
the represented number of pixels, and therefore do not have the
advertised high resolutions.
All of Defendants' nominal pixel resolution counts misleadingly
count false pixels as if they were true pixels. The Products'
screens do not use true pixels at all. One of the most important
factors in the value and price of a phone or tablet is its screen
quality, the most important factor of which is screen resolution.
For this reason, Defendants' Products are advertised and marketed
based on their screen resolution. On Defendant's own website, as
well as in the stores where the majority of the Products are sold,
the Products are represented and advertised as having
high-resolution screens. Plaintiffs and Class Members relied on
these direct representations from Defendants, the lawsuit says.
Samsung Electronics America, Inc. supplies consumer electronics and
digital products in the United States.[BN]
Attorneys for Plaintiffs and the Class:
C.K. Lee, Esq.
Anne Seelig, Esq
LEE LITIGATION GROUP, PLLC
30 East 39th Street, Second Floor
New York, NY 10016
Telephone: 212 465-1188
Facsimile: 212 465-1181
SANDERSON FARMS: Bid to Dismiss North Carolina Suit Still Pending
-----------------------------------------------------------------
Sanderson Farms, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on December 20, 2018, for
the fiscal year ended October 31, 2018, that the motion to dismiss
the putative class action suit in the District Court for the
Eastern District of North Carolina is still pending.
On January 27, 2017, Sanderson Farms, Inc. and its subsidiaries
were named as defendants, along with four other poultry producers
and certain of their affiliated companies, in a putative class
action lawsuit filed in the United States District Court for the
Eastern District of Oklahoma.
On March 27, 2017, Sanderson Farms, Inc. and its subsidiaries were
named as defendants, along with four other poultry producers and
certain of their affiliated companies, in a second putative class
action lawsuit filed in the United States District Court for the
Eastern District of Oklahoma.
The Court ordered the suits consolidated into one proceeding, and
on July 10, 2017, the plaintiffs filed a consolidated amended
complaint. The consolidated amended complaint alleges that the
defendants unlawfully conspired by sharing data on compensation
paid to broiler farmers, with the purpose and effect of suppressing
the farmers' compensation below competitive levels.
The consolidated amended complaint also alleges that the defendants
unlawfully conspired to not solicit or hire the broiler farmers who
were providing services to other defendants. The consolidated
amended complaint seeks treble damages, costs and attorneys' fees.
On September 8, 2017, the defendants filed a motion to dismiss the
amended complaint, on October 23, 2017, the plaintiffs filed their
response, and on November 22, 2017, the defendants filed a reply.
On January 19, 2018, the Court granted the Sanderson Farms
defendants' motion to dismiss for lack of personal jurisdiction. On
February 21, 2018, the plaintiffs filed a substantially similar
lawsuit in the United States District Court for the Eastern
District of North Carolina against Sanderson Farms and its
subsidiaries and another poultry producer.
On July 13, 2018, the defendants moved to dismiss the lawsuit in
the Eastern District of North Carolina. That motion is pending.
No further updates were provided in the Company's SEC report.
Sanderson Farms, Inc., an integrated poultry processing company,
produces, processes, markets, and distributes fresh, frozen, and
prepared chicken products in the United States. Sanderson Farms,
Inc. was founded in 1947 and is headquartered in Laurel,
Mississippi.
SANDERSON FARMS: Kansas Class Suit Transferred to Illinois
----------------------------------------------------------
Sanderson Farms, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on December 20, 2018, for
the fiscal year ended October 31, 2018, that defendants' motion to
transfer a class action lawsuit filed in the District of Kansas to
the Northern District of Illinois has been granted.
Between September 2, 2016 and October 13, 2016, Sanderson Farms,
Inc. and its subsidiaries were named as defendants, along with 13
other poultry producers and certain of their affiliated companies,
in multiple putative class action lawsuits filed by direct and
indirect purchasers of broiler chickens in the United States
District Court for the Northern District of Illinois.
The complaints allege that the defendants conspired to unlawfully
fix, raise, maintain, and stabilize the price of broiler chickens,
thereby violating federal and certain states’ antitrust laws, and
also allege certain related state-law claims. The complaints also
allege that the defendants fraudulently concealed the alleged
anticompetitive conduct in furtherance of the conspiracy.
The complaints seek damages, including treble damages for the
antitrust claims, injunctive relief, costs, and attorneys' fees.
As detailed below, the Court has consolidated all of the direct
purchaser complaints into one case, and the indirect purchaser
complaints into two cases, one on behalf of commercial and
institutional indirect purchaser plaintiffs and one on behalf of
end-user consumer plaintiffs.
On October 28, 2016, the direct and indirect purchaser plaintiffs
filed consolidated, amended complaints, and on November 23, 2016,
the direct and indirect purchaser plaintiffs filed second amended
complaints. On December 16, 2016, the indirect purchaser plaintiffs
separated into two cases.
On that date, the commercial and institutional indirect purchaser
plaintiffs filed a third amended complaint, and the end-user
consumer plaintiffs filed an amended complaint. On January 27,
2017, the defendants filed motions to dismiss the amended
complaints in all of the cases, and on November 20, 2017, the
motions to dismiss were denied. Since that time, each group of
plaintiffs has filed additional amended complaints, and the parties
are currently engaged in discovery.
Between December 8, 2017 and October 31, 2018, additional purported
direct-purchaser entities individually brought fifteen separate
suits against 17 poultry producers, including Sanderson Farms and
Agri Stats, in the United States District Court for the Northern
District of Illinois and the United States District Court for the
District of Kansas.
These suits allege substantially similar claims to the direct
purchaser class complaint described above. Those filed in the
Northern District of Illinois are now pending in front of the same
judge as the putative class action lawsuits. The parties are
currently engaged in discovery.
On June 26, 2018, the defendants filed a motion to transfer the
case filed in the District of Kansas to the Northern District of
Illinois, and that motion was granted on September 13, 2018. It is
possible additional individual actions may be filed.
Sanderson Farms, Inc., an integrated poultry processing company,
produces, processes, markets, and distributes fresh, frozen, and
prepared chicken products in the United States. Sanderson Farms,
Inc. was founded in 1947 and is headquartered in Laurel,
Mississippi.
SANDERSON FARMS: Plaintiffs' Appeal in Securities Suit Underway
---------------------------------------------------------------
Sanderson Farms, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on December 20, 2018, for
the fiscal year ended October 31, 2018, that the company is
awaiting a court of appeal's decision on the plaintiffs' appeal
from the order dismissing the case.
The company, along with certain of its directors and officers, were
named as defendants in a putative class action lawsuit filed on
October 28, 2016, in the United States District Court for the
Southern District of New York.
On March 30, 2017, the lead plaintiff filed an amended complaint
adding Lampkin Butts, director, Chief Operating Officer, and
President, as a defendant, and on June 15, 2017, the lead plaintiff
filed a second amended complaint.
The complaint alleges that the defendants made statements in the
Company's SEC filings and press releases, and other public
statements, that were materially false and misleading in light of
the Company's alleged, undisclosed violation of the federal
antitrust laws. The complaint also alleges that the material
misstatements were made in order to, among other things,
"artificially inflate and maintain the market price of Sanderson
Farms securities."
The complaint alleges the defendants thereby violated the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including Section 10(b) of the Exchange Act and Rule 10b-5
promulgated thereunder, and, for the individual defendants, Section
20(a) of the Exchange Act, and seeks damages, interest, costs and
attorneys' fees.
On January 19, 2018, the Court granted the defendants' motion to
dismiss and entered judgment for the defendants. On January 31,
2018, the plaintiff filed a notice of appeal to the United States
Court of Appeals for the Second Circuit. That appeal is now fully
briefed, and the Court of Appeals heard oral argument on August 31,
2018. The Company is awaiting a ruling on the appeal.
Sanderson Farms, Inc., an integrated poultry processing company,
produces, processes, markets, and distributes fresh, frozen, and
prepared chicken products in the United States. Sanderson Farms,
Inc. was founded in 1947 and is headquartered in Laurel,
Mississippi.
SANOFI PASTEUR: Troutman Sanders Attorneys Discuss Court Ruling
---------------------------------------------------------------
Amanda K. Blackmon, Esq., and Ethan G. Ostroff, Esq., of Troutman
Sanders LLP, in an article for Lexology, report that on November
27, the Third Circuit Court of Appeals affirmed a district court's
dismissal of a second putative Telephone Consumer Protection Act
class action on the grounds that the American Pipe tolling
principles did not apply, meaning the plaintiff's claims on behalf
of himself, his company, and the purported class were untimely.
In Weitzner v. Sanofi Pasteur, Inc., Ari Weitzner and Ari Weitzner
M.D. P.C. argued that their TCPA claims—stemming from unsolicited
faxes sent in April 2004 and May 2005—filed in federal court in
November 2011 were timely under the tolling principles of American
Pipe.
Ari Weitzner originally filed a purported class action for
violation of the TCPA in Pennsylvania state court seeking to
represent a class of individuals that received unsolicited faxes
from the appellee. The state court denied class certification in
June 2008, after which Weitzner continued to pursue his claim
individually in state court. In November 2011, more than six years
after receipt of the alleged unsolicited faxes, the plaintiffs
filed a second putative TCPA class action, this time in the Western
District of Pennsylvania.
Sanofi moved for summary judgment on statute of limitations
grounds, arguing the four-year statute of limitations under the
TCPA expired more than two years prior to their filing of the
complaint. The plaintiffs opposed summary judgment, arguing that
the statute of limitations for their TCPA claims and the claims of
the putative class members were tolled under American Pipe due to
the class action complaint filed in state court.
The district court granted summary judgment, finding "that American
Pipe tolling did not apply to [appellants'] class or individual
claims and that [appellants'] claims were therefore untimely." The
Third Circuit Court of Appeals reviewed the district court's
decision de novo and ultimately affirmed the decision.
The Court of Appeals looked at three issues: application of
American Pipe to the class claim, to Ari Weitzner's individual
claims, and to Ari Weitzner M.D. P.C.'s claims.
First, the Court quickly disposed of the purported class claim by
relying on recent Supreme Court precedent, China Agritech, Inc. v.
Resh, 138 S. Ct. 1800, 1804 (2018), which clarified "that American
Pipe tolling does not allow a putative class member to commence a
new class action outside of the statute of limitations." The Third
Circuit found that because China Agritech "precludes the
application of American Pipe tolling to successive class claims,"
the class claims were not subject to tolling and were therefore
untimely.
Second, the Court of Appeals addressed the application of American
Pipe to a named plaintiff in a putative class action. Here,
Weitzner was the named plaintiff in the purported class action
filed in state court. When assessing whether American Pipe applied
to appellant Weitzner's individual claim, the Court of Appeals
looked to the two primary purposes underlying the Supreme Court's
decision in American Pipe: (1) efficiency and economy of
litigation, and (2) "protecting the interest of putative unnamed
class members who had not received notice and were unaware of the
pending class action." Weighing the purposes of American Pipe
tolling, the Court held there was no reason to extend the tolling
to a named plaintiff. Specifically, the Court found that because a
named plaintiff may pursue their individual claim after class
certification is denied in the originally filed class action, there
was no purpose for allowing a named plaintiff to file a new
individual claim outside of the statute of limitations period and
"no injustice results from denying those parties tolling."
Third, the Court of Appeals assessed whether American Pipe tolling
saved appellant Ari Weitzner M.D. P.C.'s individual claim. This
corporation was not a named plaintiff in the state court action but
rather a putative class member. However, because the company was
not an "unaware, absent class member American Pipe was designed to
protect" the Third Circuit held its claim was also time-barred. The
Court noted that Weitzner was the sole shareholder in Ari Weitzner
M.D. P.C., and as a result the company had actual notice of the
pending state court action and the denial of class certification.
Accordingly, tolling the company's claim would "result in an abuse
of American Pipe."
The Third Circuit's application of American Pipe in Weitzner v.
Sanofi Pasteur, Inc. makes clear that a named plaintiff from a
putative class action may not later pursue a time-barred individual
claim based upon the same conduct. The holding also stands for the
proposition that a company that is owned and controlled by a named
plaintiff in a putative class action may not take advantage of
tolling the statute of limitations for a claim based upon the same
conduct at issue in its owner's original suit. [GN]
SARGENTO: Judge Denies Request to Revive "Natural" Class Action
---------------------------------------------------------------
J. R. Pegg, writing for IEG Policy, reports that a federal judge
has denied a request to revive a lawsuit challenging Sargento's use
of the term "natural" on its cheese products, concluding that the
class action should remain stayed while FDA considers regulating
the label claim. [GN]
SB ONE: Faces Parshall Suit in Enterprise Bank Merger Deal
----------------------------------------------------------
SB One Bancorp said in its Form 8-K filing with the U.S. Securities
and Exchange Commission filed on December 18, 2018, that the
company has been named as defendant in a class action suit
entitled, Parshall v. Enterprise Bank N.J., et al., (No.
003949-18).
On November 5, 2018, SB One Bancorp ("SB One") filed with the
Securities and Exchange Commission (the "SEC") a definitive proxy
statement/prospectus with respect to the special meeting of
shareholders of Enterprise Bank N.J., a New Jersey-chartered bank
("Enterprise"), scheduled to be held on December 20, 2018 at which
Enterprise shareholders will be asked to, among other things, vote
on a proposal to approve the agreement and plan of merger by and
among SB One, SB One Bank, a New Jersey-chartered bank and wholly
owned subsidiary of SB One, and Enterprise dated as of June 19,
2018, pursuant to which Enterprise will merge with and into SB One
Bank with SB One Bank surviving the merger.
A purported securities class action lawsuit has been filed against
SB One, Enterprise and each of the members of the board of
directors of Enterprise in the Superior Court of New Jersey Law
Division: Union County. Captioned Parshall v. Enterprise Bank N.J.,
et al., (No. 003949-18), the case was filed on November 19, 2018,
purports to have been brought on behalf of all public shareholders
of Enterprise, and seeks to enjoin the defendants from proceeding
with the shareholder vote on the proposed merger transaction at the
special meeting or consummating the proposed merger unless and
until SB One and Enterprise disclose allegedly omitted information,
in addition to paying damages allegedly suffered by the plaintiffs
as a result of the asserted omissions, as well as attorneys' fees
and expenses.
SB One and Enterprise believe that all allegations in the complaint
are without merit, and further believe that no supplemental
disclosure is required under applicable laws; however, SB One and
Enterprise wish to make certain supplemental disclosures related to
the merger transaction solely for the purpose of mooting the
allegations contained in the complaint and avoiding the expense and
burden of litigation.
A copy of the supplemental disclosure is available at
https://goo.gl/o74a1b
* * *
SB One Bancorp (Nasdaq: SBBX), the holding company for SB One Bank,
announced Dec. 21 the successful closing of the previously
announced merger of Enterprise Bank N.J. with and into SB One Bank.
Under the terms of the merger agreement, each outstanding share of
Enterprise Bank common stock will be exchanged for 0.4538 shares of
SB One Bancorp common stock. The merger expands SB One Bank's
presence throughout New Jersey with four new branches, and offers
new market opportunities in Union, Essex and Middlesex Counties. SB
One Bank now has 18 branches throughout New Jersey and New York and
approximately $1.6 billion in assets.
SB One Bancorp operates as a bank holding company for SB One Bank
that provides commercial banking and related financial services to
individual, business, and government customers. It operates in two
segments, Banking and Financial Services, and Insurance Services.
The company was formerly known as Sussex Bancorp and changed its
name to SB One Bancorp in April 2018. SB One Bancorp was founded in
1975 and is based in Rockaway, New Jersey.
SECURITAS CRITICAL: Cal. App. Affirms Myles Certification Denial
----------------------------------------------------------------
The Court of Appeals of California, Second District, Division
Three, issued an Opinion affirming the judgment of the District
Court denying Plaintiffs' Motion for Class Certification in the
case captioned JOAN MYLES, Plaintiff and Appellant, v. SECURITAS
CRITICAL INFRASTRUCTURE SERVICES, INC., Defendant and Respondent.
No. B275608. (Cal. App.).
Securitas Critical Infrastructure Services, Inc. (Securitas)
employed Joan Myles (Myles) as a security officer. Securitas gave
Myles a uniform to wear but did not pay either for the cost of
maintaining it or for the black shoes she had to wear. Claiming
that she and other security officers were entitled to reimbursement
for these costs, Myles filed a putative class action and moved to
certify the class.
The trial court issued a detailed order denying Myles's motion for
class certification. The court first set out the controlling law,
the Labor Code and Wage Order No. 4, which address when employers
must indemnify employees for costs associated with uniforms.
First, an employer must indemnify an employee for a uniform item
that is of distinctive design or color but not for items generally
usable in the specific occupation. The court thus found that black
shoes and belts were not cognizable components of a distinctive
uniform which an employer must supply.
Second, the law does not require employers to reimburse expenses
and time spent maintaining uniforms requiring only minimal time for
care. Myles, however, failed to provide evidence of a company-wide
policy or practice requiring employees to incur expenses to
maintain their uniforms beyond that of ordinary care.
A community of interest does not exist among the proposed class
members.
At issue here are Labor Code section 2802 and Wage Order No. 4.
Labor Code section 2802 generally requires employers to indemnify
employees for all necessary expenditures incurred in direct
consequence of the discharge of his or her duties. Wage Order No. 4
specifically addresses when employers must indemnify employees for
uniforms. It states, When uniforms are required by the employer to
be worn by the employee as a condition of employment, such uniforms
shall be provided and maintained by the employer. The term
`uniform' includes wearing apparel and accessories of distinctive
design or color.
Myles thus contends that Labor Code section 2802 and Wage Order No.
4 required Securitas to indemnify security guards for uniform
costs. Specifically, she claims that a class should have been
certified based on Securitas's failure to indemnify guards for
costs associated with shoes and other items they wore as part of
their uniform, maintaining their uniforms, and polishing leather
items.
Reimbursement for shoes and other items
Myles first claims that Securitas must reimburse security officers
for those parts of their uniform officers personally buy, namely,
black shoes.The way Myles poses the issue, however, presumes a
crucial premise that black shoes are a uniform as defined by the
pertinent authority. The appropriate focal point, however, is: what
is a uniform?
Wage Order No. 4 defines a uniform to include items of distinctive
design or color. (Cal. Code Regs., tit. 8, Section 11040, subd.
(9)(A), italics added.) Therefore, not just any item of clothing
having a design or color constitutes a uniform; only distinctive
ones do. The IWC's statement as to the basis for Wage Order No. 4
thus explains that with regard to color and design of uniforms,
ordinary work clothes are not considered to be uniforms when the
employees have a free choice of what to wear, but when the employer
specifies the design or color or requires that an insignia be
affixed, the employer does so for his or her own advantage as a
matter of advertizing, public image, or some other business
function.
Myles's and Securitas's evidence showed that security officers wore
a variety of black shoes, some which could be considered
distinctive but others which could be worn in all walks of life.
Some guards wore specialized shoes per a supervisor's request.
Others wore sneakers or tennis shoes, boots, dress shoes or
low-quarter shoes. Some guards varied the shoes they wore.16 Given
this lack of conformity, determining whether a particular security
guard wore a distinctive shoe or item would require, in the trial
court's words, going security guard by security guard, and shoe by
shoe In other words, the claims are so individualized as to
preclude there being a common question that would give rise to a
common answer.
The Court therefore concludes that the trial court did not abuse
its discretion by refusing to certify a class based on Myles's
claim that Securitas must compensate employees for the shoes and
other items they buy.
Reimbursement for maintaining uniform
The trial court also denied Myles's motion to certify a class based
on Securitas's alleged obligation to reimburse employees for
maintaining uniforms. As the Court said above, employers must pay
for all necessary expenditures incurred in direct consequence of"
an employee's discharge of duties (Lab. Code, Section 2802) and for
maintaining a uniform the employer requires the employee to wear
(Wage Order No. 4). But there are limits on what maintenance costs
an employer must bear.
The IWC's statement as to the basis for Wage Order No. 4 explains
that employees are reasonably expected to maintain uniforms made of
fabrics requiring minimal care. Garments requiring separate
laundering because of heavy soil or color and uniforms which need
full ironing require more than minimal care by modern standards,
and the employer who requires such uniforms must provide for their
maintenance.
To be sure, there was evidence some employees gave more than
minimal care to their uniforms; but there was no evidence Securitas
had a policy requiring more than minimal care. Rather, the evidence
showed that employees had wide-ranging laundering habits. Some dry
cleaned their uniform. Others ironed them. One had her uniform
professionally pressed. Many simply washed and dried (either in the
dryer or on the line) their uniforms at home or at a laundromat. To
the extent Myles claims that taking clothes out of a dryer promptly
to avoid wrinkling is special care because it requires waiting at
home for the dry cycle to finish, we do not agree that is
necessarily so, and she cites no authority for that notion.
Therefore, whether employees had to engage in something more than
ordinary or minimal care of their uniforms would require going from
security guard to security guard to make inquiries about their
laundering habits and why they laundered in a certain way (e.g.,
because they received special instruction from a supervisor about
uniform maintenance or because of personal preference. Myles has
failed to demonstrate a community of interest among security guards
concerning uniform maintenance.
Reimbursement for maintaining leather items
Myles's final claim concerns leather items security guards wear.
Securitas requires all leather items to be shined. Myles therefore
contends security guards should be compensated for time spent
polishing leather items (shoes and belts) and for the cost of
polish. Myles again fails to demonstrate that security guards have
a common interest or that questions of law and fact predominate. As
the trial court aptly said, Securitas may require leather items to
be shined, but Securitas does not require its guards to wear
leather items. Whether guards wear leather items is an
individualized inquiry.
The Court concludes that the trial court did not abuse its
discretion by denying Myles's motion for class certification.
A full-text copy of the Cal. App.'s November 29, 2018 Opinion is
available at https://tinyurl.com/yd8rt932 from Leagle.com.
Seterah Law Group, Shaun Setareh -- shaun@setarehlaw.com -- H.
Scott Leviant -- scott@setarehlaw.com -- and Thomas Segal --
thomas@setarehlaw.com -- for Plaintiff and Appellant.
Tharpe & Howell, Sherry B. Savitt, Jennifer S. McGeorge --
jmcgeorge@grsm.com -- Littler Mendelson, J. Kevin Lilly --
klilly@littler.com -- and Barrett K. Green -- bgreen@littler.com --
for Defendant and Respondent.
SEQUOIA FUND: Ruling in Edwards and Fortune Suit under Appeal
-------------------------------------------------------------
Thomas Edwards and Michael Fortune filed an appeal from a court
decision in the case captioned, THOMAS EDWARDS; and MICHAEL
FORTUNE, individually and on behalf of all others similarly
situated, Plaintiffs v. SEQUOIA FUND, INC., Defendant, Case No.
1:18-cv-04501-GBD (S.D.N.Y., May 21, 2018). The appeal was filed on
November 15, 2018 before the U.S. Court of Appeals for the Second
Circuit, and captioned as, THOMAS EDWARDS; and MICHAEL FORTUNE,
individually and on behalf of all others similarly situated,
Plaintiffs v. SEQUOIA FUND, INC., Defendant, Case No. 18-3467 (2th
Cir.).
As reported by the Class Action Reporter, Thomas Edwards and
Michael Fortune, individually and on behalf of all others similarly
situated, Plaintiffs, v. Sequoia Fund, Inc., a Maryland
Corporation, Defendant, Case No. 18-cv-04501 (S.D.N.Y. May 21,
2018), seeks damages, equitable and injunctive relief for breach of
contract. The Sequoia Fund is a high-cost mutual fund run by
adviser Ruane, Cunniff & Goldbarb and its Portfolio Managers,
Robert D. Goldfarb and David M. Poppe. The Fund Managers
concentrated the Fund's assets in a single stock, Valeant
Pharmaceuticals, Inc. despite the policy of having at least three
investment funds into which they could invest their retirement
savings, says the complaint.
Valeant's stock had already dropped by over 88 percent in less
than a year and has shed an additional 20 percent since then.
Because of its concentration in Valeant and its fees, the Fund
underperformed its benchmark, the S&P 500 Index, by 6.14% in
2014, 8.68% in 2015, and 15.17% from January 1 through June 15,
2016. This caused the Fund to lose over $600 million dollars when
Valeant's stock price sustained a substantial decline in value.
Plaintiffs invested in Sequoia Fund.
Sequoia Fund, Inc. is an open ended equity mutual fund launched and
managed by Ruane, Cunniff & Goldfarb L.P. It invests in the public
equity markets of countries across the globe. The fund invests in
stocks of companies operating across diversified sectors. It
invests in value stocks of companies operating across all market
capitalizations. The fund focuses on factors such as balance sheet,
earnings history, and prospects of each company to create its
portfolio. It benchmarks the performance of its portfolio against
the S&P 500 Index. Sequoia Fund, Inc. was formed on July 15, 1970
and is domiciled in United States. [BN]
The Plaintiff is represented by:
Felicia Sue Ennis, Esq.
Alan Marshall Pollack, Esq.
ROBINSON BROG LEINWAND GREENE
GENOVESE & GLUCK PC
875 Third Avenue, 9th Floor
New York, NY 10022−6225
Telephone: (212) 603−6300
Facsimile: (212) 956−2164
E-mail: FSE@RobinsonBrog.Com
AMP@Robinsonbrog.com
- and -
Mark A. Griffin, Esq.
Raymond J. Farrow, Esq.
KELLER ROHRBACK L.L.P
1201 3rd Avenue, Suite 3200
Seattle, WA 98101
Telephone: (206) 623−1900
Facsimile: (206)−623−3384
E-mail: mgriffin@kellerrohrback.com
rfarrow@kellerrohrback.com
- and -
Peter R. Ginsberg, Esq.
PETER R. GINSBERG LAW, LLC
12 East 49th Street, 30th Floor
New York, NY 10017
Telephone: (646) 374−0029
Facsimile: (646) 355−0202
E-mail: prg@robinsonbrog.com
The Defendant is represented by:
Amy D. Roy, Esq.
Lee S. Gayer, Esq.
ROPES & GRAY LLP
800 Boylston
Boston, MA 02199
Telephone: (617) 951−7445
Facsimile: (617) 235−9755
E-mail: amy.roy@ropesgray.com
Lee.Gayer@ropesgray.com
- and –
Robert A. Skinner, Esq.
Ropes & Gray LLP (MA)
800 Boylston St
Boston, MA 02199
Telephone: (617) 951-7000
Facsimile: (617) 951-7050
E-mail: Robert.Skinner@ropesgray.com
SHILOH INDUSTRIES: Time to Appeal N.Y. Class Suit Already Expired
-----------------------------------------------------------------
Shiloh Industries, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on December 20, 2018, for
the fiscal year ended October 31, 2018, that the U.S. District
Court for the Southern District of New York rendered an opinion and
order granting the defendants' motion to dismiss the class action
suit and the time period for an appeal has expired.
A securities class action lawsuit was filed on September 21, 2015
in the United States District Court for the Southern District of
New York (the "District Court") against the Company and certain of
its officers.
As amended, the lawsuit claimed in part that the company issued
inaccurate information about, among other things, its earnings and
income and its internal controls over financial reporting for
fiscal 2014 and the first and second fiscal quarters of 2015 in
violation of the Securities Exchange Act of 1934.
The amended complaint seeks an award of damages in an unspecified
amount on behalf of a putative class consisting of persons who
purchased our common stock between January 12, 2015 and September
14, 2015, inclusive.
The District Court rendered an opinion and order granting the
defendants' motion to dismiss the lawsuit on September 19, 2018 and
the time period for an appeal has expired.
Shiloh Industries, Inc., together with its subsidiaries, provides
lightweighting, noise, and vibration solutions to automotive,
commercial vehicle, and other industrial markets worldwide. Shiloh
Industries, Inc. was founded in 1950 and is headquartered in Valley
City, Ohio.
SIDEPOINT INC: Court Extends Time to Respond in Carlson Suit
------------------------------------------------------------
The United States District Court for the Eastern District of
California issued an Order granting Parties' Joint Stipulation for
an Extension of Time in the case captioned THERESA CARLSON,
Plaintiff, v. SIDEPOINT, INC., Defendant. No. 2:18-cv-02838-TLN-DB.
(E.D. Cal.).
This matter is a putative class action alleging improper contact by
Defendant Sidepoint, Inc. (Defendant) to the cell phone of
Plaintiff Theresa Carlson (Plaintiff) and others similarly
situated, in violation of the Telephone Consumer Protection Act.
The parties have filed a joint stipulation to extend Defendant's
time to respond so the parties can engage in settlement discussions
at the earliest point.
A full-text copy of the District Court's November 29, 2018 Order is
available at https://tinyurl.com/yb8rfamu from Leagle.com.
Theresa Carlson, Plaintiff, represented by Adrian R. Bacon --
abacon@attorneysforconsumers.com -- Law Offices of Todd M.
Friedman, P.C. & Todd M. Friedman --
tfriedman@attorneysforconsumers.com -- Law Offices of Todd M.
Friedman, P.C.
SPARE RIB: Fails to Pay Proper Wages to Cooks, Cantor Marcia Says
-----------------------------------------------------------------
MILTON EMILIO CANTOR MARCIA, individually and on behalf of others
similarly situated, plaintiff v. THE SPARE RIB, INC. d/b/a THE
SPARE RIB; TSR/HICKSVILLE INC. d/b/a THE SPARE RIB; OUR NEXT STEP,
LTD. d/b/a THE SPARE RIB; MICHAEL IACONO; LEONARD IACONO; and
FREDDY BLANCO, Defendants, Case No. 2:18-cv-06552 (E.D.N.Y., Nov.
16, 2018) is an action against the Defendants for failure to pay
minimum wages, overtime compensation, meal and rest periods, and
provide accurate wage statements.
The Plaintiff Cantor Marcia was employed by the Defendants a cook.
The Spare Rib, Inc. d/b/a The Spare Rib is engaged in the
restaurant business in New York.[BN]
The Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: Faillace@employmentcompliance.com
SSP AMERICA: Faces Moomau Labor Suit in California State Court
--------------------------------------------------------------
A class action lawsuit has been filed against SSP America SMF LLC.
The case is captioned Khrystyne Moomau and Robert Mendez and on
behalf of all others similarly-situated employees and all current
and former aggrieved employees of Defendants, the Plaintiffs, vs.
SSP America SMF LLC and Does 1-50, the Defendants, Case No.
34-2018-00246123-CU-OE-GDS (Cal. Super. Ct., Dec. 7, 2018). The
suit alleges employment-related violation.[BN]
Attorneys for Plaintiff:
Graham S P Hollis, Esq.
GRAHAM HOLLIS APC
3555 5th Ave, Suite 200
San Diego, CA 92103
Telephone: (619) 692-0800
Facsimile: (619) 692-0822
E-mail: ghollis@grahamhollis.com
STALLION OILFIELD: Bourque Suit Transferred to S.D. Texas
---------------------------------------------------------
A case, CHRISTOPHER BOURQUE, Individually and on behalf of all
others similarly situated, the Plaintiff, vs. STALLION OILFIELD
HOLDINGS, INC., the Defendant, Case No. 2:18-cv-00779, was
transferred from the U.S. District Court for the Western District
of Pennsylvania, to the U.S. District Court for the Southern
District of Texas (Houston) on Dec. 14, 2018. The Southern District
of Texas Court Clerk assigned Case No. 4:18-cv-04723 to the
proceeding. The case is assigned to the Hon. Judge Andrew S.
Hanen.
According to the complaint, the Plaintiff brought this lawsuit to
recover unpaid overtime wages and other damages under Fair Labor
Standards Act, against the Defendant.
Stallion is a rental and distribution company operating in
nationwide but with offices in Canonsburg, Carmichaels, and
Williamsport, PA. Stallion specializes in solids control, drilling
support, completion and production, wellsite construction, offshore
services, StaRComm, camp complexes, and inland-water marine
services.[BN]
Attorneys for Plaintiff:
Andrew W. Dunlap, Esq.
Jennifer Solak, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
- and -
Joshua P. Geist, Esq.
Michael A Josephson, Esq.
GOODRICH & GEIST, P.C.
3634 California Ave
Pittsburgh, PA 15212
Telephone: (412) 766-1455
Facsimile: (412) 766-0300
E-mail: mjosephson@mybackwages.com
Attorneys for Stallion Oilfield Holdings, Inc.:
Christopher Bouriat, Esq.
REED SMITH LLP
225 Fifth Avenue
Reed Smith Centre
Pittsburgh, PA 15228
Telephone: (412) 288-4119
STERICYCLE INC: Settlement Reached in Illinois Securities Suit
--------------------------------------------------------------
Stericycle, Inc. on December 19, 2018, announced that it has
reached a proposed resolution with Plaintiffs and their counsel in
In re: Stericycle, Inc., Securities Litigation, Case No.
1:16-cv-07145 (N.D. Ill.), the Company said in its Form 8-K filing
with the U.S. Securities and Exchange Commission filed on December
20.
The Proposed Securities Class Action Settlement remains subject to
final documentation of the agreement and Court approval. In the
Proposed Securities Class Action Settlement, the Company is
admitting no fault or wrongdoing and is entering into the Proposed
Securities Class Action Settlement in order to avoid the cost and
uncertainty of litigation.
Under the terms of the Proposed Securities Class Action Settlement
that will be submitted to the Court for approval, the Company will
establish a common fund of $45 million, from which will be paid all
compensation to members of the settlement class, attorneys' fees to
class counsel, incentive awards to the named class representatives
and all costs of notice and administration.
The large majority of the $45 million common fund established
pursuant to the Proposed Securities Class Action Settlement will be
paid by the Company's insurers.
Stericycle, Inc., together with its subsidiaries, provides
regulated and compliance solutions to the healthcare, retail, and
commercial businesses in the United States and internationally.
Stericycle, Inc. was founded in 1989 and is based in Lake Forest,
Illinois.
TABITHA INC: Fails to Pay Proper Wages, Cotton Suit Alleges
-----------------------------------------------------------
GINA M. COTTON, individually and on behalf of all others similarly
situated, Plaintiff v. TABITHA, INC.; and HEATH STUKENHOLTZ,
Defendants, Case No. 4:18-cv-03157-RGK-SMB (D. Neb., Nov. 16, 2018)
is an action against the Defendants' failure to pay the Plaintiff
and the class overtime compensation for hours worked in excess of
40 hours per week.
The Plaintiff Cotton was employed by the Defendants as director of
development.
Tabitha, Inc., doing business as Tabitha Health Care Services,
provides elder care services in Southeast Nebraska. It offers
living communities, in home support, memory care, rehabilitation,
and hospice care services. The company was founded in 1886 and is
based in Lincoln, Nebraska. [BN]
The Plaintiff is represented by:
William J. Bianco, Esq.
BIANCO STROH, LLC
2426 S. 179th Street
Omaha, NE 68130
Telephone: (402) 933-2477
E-mail: bbianco@biancosroh.com
TERNIUM SA: Faces Class Action Over Securities Violations
---------------------------------------------------------
Shareholder rights law firm Robbins Arroyo LLP on Dec. 5 disclosed
that purchasers of Ternium S.A. (NYSE: TX) filed a class action
complaint against the company's officers and directors for alleged
violations of the Securities Exchange Act of 1934 between May 1,
2014 and November 27, 2018. Ternium S.A., through its subsidiaries,
manufactures and processes various steel products in the United
States and Latin America.
Ternium's Chairman Allegedly Knew About Bribes to Government
Officials
According to the complaint, on May 7, 2009, Ternium sold its 59.7%
stake in Venezuelan steel company Sidor to Corporacion Venezolana
de Guayana for almost $2 billion. Ternium subsequently represented
to investors that the company does not condone the offering or
receiving of bribes or any other form of improper payments.
However, Ternium's Chairman and Argentine billionaire, Paolo Rocca,
knew that one of his company's executives paid cash to government
officials from 2009 to 2012 to expedite compensation payments for
the sale of Ternium's Sidor unit. On November 27, 2018, Bloomberg
reported that Rocca was indicted for his role in a graft scheme,
set a $103 million bond, and forbade Rocca from leaving the
country. On this news, Ternium's stock fell nearly 5% to close at
$28.02 per share on November 27, 2018.
Ternium Shareholders Have Legal Options
Concerned shareholders who would like more information about their
rights and potential remedies can contact attorney Leonid Kandinov
at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the
shareholder information form on the firm's website.
Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a
shareholder rights law firm. The firm represents individual and
institutional investors in shareholder derivative and securities
class action lawsuits, and has helped its clients realize more than
$1 billion of value for themselves and the companies in which they
have invested. [GN]
TIGER BRANDS: May Have to Pay Up to ZAR2MM to Listeriosis Victims
-----------------------------------------------------------------
James de Villiers, writing for Business Insider SA, reports that
Tiger Brands may end up paying between R100,000 and R2 million to
the families of victims who passed away from listeriosis, two of
the country's top legal experts believe. This after the South
Gauteng High Court on Dec. 3 confirmed that a class action suit
against the company may proceed.
Tiger Brands could be expected to pay anything between R100,000 and
R2 million to the families of the more than 200 people who died
from listeriosis in South Africa, two of the country's top legal
experts believe.
On Dec. 3, the South Gauteng High Court granted a certification
order which allows a class-action lawsuit against Tiger brands to
continue.
Tiger Brands' Enterprise cold meat processing facility in Polokwane
was identified in March as the source of listeria in South Africa.
At the time Tiger Brands CEO Lawrence Mac Dougall said the company
will take steps to consider "valid" claims if a "tangible link" is
found between its products and Listeriosis fatalities.
Ivan Herselman, director and head legal consultant at the corporate
law firm Argumentum, believes the roughly 1,000 claimants might get
payments of R2 million and above from Tiger Brands. He, however,
said the eventual payouts will be subject to several variables.
Unlike the United States, South Africans can't sue for a wrongful
death, but need to sue for the loss of a breadwinner, he said.
"Claimants will easily get R2 million plus from the lawsuit, but it
really depends on the strength of the case," Mr. Herselman told
Business Insider South Africa on Dec. 4.
"There are a lot of high profile lawyers involved in the case, and
I doubt they'd spend their time on something if they weren't sure
of the result."
At R2 million each, the total claim from victims and families would
come to R2 billion.
One of the country's top advocates, who have been involved in a
number of high-profile lawsuits, told Business Insider South Africa
in April that claimants who lost a breadwinner should get a minimum
of R100,000 from Tiger Brands.
"The Esidimeni sage set a precedent of an R1.2 million payout to
the families of each victim -- but that was a constitutional
matter," the lawyer said at the time. She spoke to Business Insider
South Africa on the condition of anonymity.
The lawyer, however, said pregnant mothers who lost babies can
expect payments of roughly R1.5 million. "The loss of a child is an
aggravating factor for possible lawsuits."
At an average of R100,000 each, Tiger Brands would pay a total of
R100 million if all 1,000 claimants were successful.
Zain Lundell from LHL lawyers, who is co-litigating the listeriosis
class suit with Richard Spoor, said their next step will be to
issue a summons in January for the formal legal processes to begin.
"We have no ball-park number we are claiming from Tiger Brands. It
is impossible to say how much the claimants will receive at the
end," Mr. Lundell told Business Insider South Africa.
Tiger Brands on Dec. 3 said it is working together with the lawyers
from the class suit and will share costs for a countrywide
communications campaign for the lawsuit.
"Tiger Brands reiterates that no liability has been established
against the company for the listeriosis outbreak, however, should
liability be determined, the company will respond appropriately to
any legitimate claims," a statement by Tiger Brands read.
Argumentum's Herselman said the lawsuit can take anything between
three to five years for any payout to be finalised.
"And that is subject to no appeals," he said. "The recent
settlement between the 'please call me' inventor and Vodacom is a
prime example of South Africa's slow justice system works who
received a payout after more than 10 years in court." [GN]
TOLEDO, OH: Court Narrows Doc Production in P. Ball's ADA Suit
--------------------------------------------------------------
The United States District Court for the Southern District of Ohio,
Eastern Division, issued an Opinion and Order granting in part and
denying in part Plaintiffs' Motion to Compel Production in the case
captioned PHYLLIS BALL, et al., Plaintiffs, v. JOHN KASICH, et al.,
Defendants. Case No. 2:16-cv-282. (S.D. Ohio).
Plaintiffs Phyllis Ball, Antonio Butler, Caryl Mason, Richard
Walters, Ross Hamilton, and the Ability Center of Greater Toledo
(Plaintiffs) bring this class action on behalf of themselves and
other similarly situated individuals with intellectual and
developmental disabilities against Defendants. Plaintiffs allege
that Ohio's administration, management, and funding of its service
system for people with intellectual and developmental disabilities
such as themselves puts them at serious risk of segregation and
institutionalization in Intermediate Care Facilities (ICFs) in
violation of Title II of the Americans with Disabilities Act (ADA)
and Section 504 of the Rehabilitation Act.
As it relates to information related to new waiting list rule (RFPs
1, 2, 3; ROGs 1, 2), the Motion to Compel is denied. As it relates
to ROG 13 as presently formulated, the Motion to Compel is denied.
As it relates to information related to options counseling in
state-operated ICFs (RFP 22), the Motion to Compel is denied. As
it relates to information related to individuals residing in
privately-operated ICFs (ROG 10), the Motion to Compel is denied.
As it relates to information related to individuals residing in
eight-bed ICFs (ROG 12), the Motion to Compel is denied.
As it relates to information related to funding of ICF programs and
state ICF rate redesigns (RFP 18), the Court finds that DODD's
proposed production of ICF workgroup meeting presentations
sufficiently responds to RFP 18. To the extent RFP 18 seeks
information beyond this response, the Motion to Compel is denied.
A full-text copy of the District Court's November 29, 2018 Opinion
and Order is available at https://tinyurl.com/y84at6x2 from
Leagle.com.
Phyllis Ball, by her General Guardian, Phyllis Burba, Antonio
Butler, individually, Caryl Mason, by her Next Friend Cathy
Mason-Jordan, Richard Walters, by his Next Friend Linda Walters,
Ross Hamilton, by his Next Friend Sherry Hamilton & The Ability
Center of Greater Toledo, in its organizational and representative
capacity, Plaintiffs, represented by Kerstin Sjoberg --
ksjoberg-witt@disabilityrightsohio.org -- Disability Rights Ohio,
Alison A. McKay, Disability Rights Ohio, Anna M. Krieger, Center
for Public Representation, pro hac vice, Cathy E. Costanzo, Center
for Public Representation, pro hac vice, John Gribbin Hutchinson --
JHUTCHINSON@SIDLEY.COM -- Sidley Austin LLP, pro hac vice, Jonathan
Warren Muenz -- jon.muenz@gmail.com -- Sidley Austin LLP, pro hac
vice, Kathryn Lesley Rucker -- krucker@cpr-ma.org -- Center for
Public Representation, pro hac vice, Kevin J. Truitt, Disability
Rights Ohio, Kristen A. Knapp -- KKNAPP@SIDLEY.COM -- Sidley Austin
LLP, pro hac vice, Neil R. Ellis -- NELLIS@SIDLEY.COM -- Sidley
Austin LLP, pro hac vice & Samuel R. Bagenstos, pro hac vice.
Governor John Kasich, in his official capacity, Defendant,
represented by Zachery Paul Keller, Ohio Attorney General
Constitutional Offices, Sarah Elaine Pierce, Ohio Attorney
General's Office Constitutional Offices Section & Tiffany L.
Carwile , Ohio Attorney General Constitutional Offices Section.
TRANS UNION LLC: Court Grants Final Approval of Larson Settlement
-----------------------------------------------------------------
The United States District Court for the Northern District of
California, San Francisco Division, issued an Order granting
Plaintiffs' Motion for Final Approval of the proposed class action
Settlement in the cases captioned BRIAN DOUGLAS LARSON, on behalf
of himself and all others similarly situated, Plaintiff, v. TRANS
UNION, LLC, Defendant; and RONALD J. MILLER, on behalf of himself
and all others similarly situated, Plaintiff, v. TRANS UNION, LLC,
Defendant. Case Nos. 3:12-cv-05726-WHO, 18-3280-WHO (N.D. Cal.).
Ronald J. Miller is appointed as an additional Class Representative
in these Actions.
Class Representatives Larson and Miller fairly and adequately
represent the interests of the Settlement Class. Class Counsel
adequately represent the Class Representatives and the Settlement
Class. Any objections have been considered and are hereby
overruled.
The Settlement is fair, reasonable and adequate to the Settlement
Class. Each Settlement Class Member shall be bound by the
Settlement, including the releases contained in the Settlement
Agreement.
A full-text copy of the District Court's November 29, 2018 Order is
available at https://tinyurl.com/ybfmswjs from Leagle.com.
Brian Douglas Larson, on behalf of himself and all others similarly
situated, Plaintiff, represented by Andrew J. Ogilvie --
andy@ogilvie-brewer.com -- Ogilvie & Brewer, LLP, Carol McLean
Brewer -- carol@aoblawyers.com -- Ogilvie & Brewer LLP, James A.
Francis -- jfrancis@consumerlawfirm.com -- Francis and Mailman,
P.C., David A. Searles -- dsearles@consumerlawfirm.com -- Francis &
Mailman, P.C.,John Soumilas -- jsoumilas@consumerlawfirm.com --
Francis and Mailman, P.C. & Lauren K.W. Brennan --
lbrennan@consumerlawfirm.com -- Francis and Mailman PC.
Trans Union, LLC, Defendant, represented by Brian C. Frontino --
bfrontino@stroock.com -- Stroock & Stroock & Lavan LLP, Julia B.
Strickland -- jstrickland@stroock.com -- Stroock & Stroock & Lavan
LLP, Stephen Julian Newman -- snewman@stroock.com -- Stroock and
Stroock and Lavan LLP & Christine E. Ellice -- cellice@stroock.com
-- Stroock and Stroock and Lavan LLP.
TRANS WORLD: Faces Loyalty Memberships an Subscriptions Class Suit
------------------------------------------------------------------
Trans World Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on December 18,
2018, for the quarterly period ended November 3, 2018, that the
company is defending against a class action lawsuit over loyalty
memberships and magazine subscriptions.
On November 14, 2018, three consumers filed a putative class action
complaint against Trans World Entertainment Corporation and Synapse
Group, Inc. in the United States District Court for the District of
Massachusetts Boston Division (Case No.1:18-cv-12377-DPW)
concerning enrollment in the Company's Backstage Pass VIP loyalty
program and associated magazine subscriptions.
The complaint alleges, among other things, that the Company's
"negative option marketing" misled consumers into enrolling for
membership and subscriptions without obtaining the consumers'
consent. The complaint seeks statutory and actual damages. The
Company is reviewing the claims.
Trans World Entertainment Corporation, together with its
subsidiaries, operates as a specialty retailer of entertainment
products. The company operates in two segments, For Your
Entertainment (fye) and etailz. Trans World Entertainment
Corporation was founded in 1972 and is headquartered in Albany, New
York.
TUXEDOS OF WATERLOO: Beard Suit Alleges FLSA Breach
---------------------------------------------------
Yvonne Beard, individually and on behalf of all others similarly
situated v. Tuxedos of Waterloo, Inc. dba Tuxedos Showclub, Case
3:18-cv-00117 (S.D. Iowa, November 21, 2018), is brought against
the Defendants for unpaid minimum wages, overtime compensation,
unlawful deductions, liquidated damages, and for other relief under
the Fair Labor Standards Act and the Iowa Wage Payment Collection
Law.
In this action, the Plaintiff claims that the Defendant has
misclassified its exotic dancers as independent contractors rather
than employees; has paid their dancers less than the minimum wage
and has failed to pay them overtime compensation for hours worked
in excess of 40 a week; and has taken unlawful deductions from the
dancers' pay in violation of Iowa state law.
The Plaintiff Yvonne Beard is an adult resident of Davenport, Iowa.
She worked as an exotic dancer at Tuxedos from approximately 2011
through September 2018.
The Defendant Tuxedos of Waterloo, Inc. dba Tuxedos Showclub is a
corporation with its principal place of business in Davenport,
Iowa. [BN]
The Plaintiff is represented by:
Nate Willems, Esq.
RUSH & NICHOLSON PLC
P.O. Box 637
Cedar Rapids, IA 52406
Tel: (319) 363-5209
Fax: (319) 363-6664
E-mail: nate@rushnicholson.com
TYC, LLC: Bourlier Seeks Minimum & Overtime Wages
-------------------------------------------------
James Bourlier, individually, and on behalf of all others similarly
situated, the Plaintiff, v. TYC, LLC, an Arizona Limited Liability
Company; Dakota Scottsdale LLC, an Arizona Limited Liability
Company, Scottsdale Beach Club, LLC, an Arizona Limited Liability
Company; Triyar Beach Club LLC, an Arizona Limited Liability
Company; Triyar Entertainment Scottsdale I LLC, an Arizona Limited
Liability Company; Shawn Yari and Jane Doe Yari, a Married Couple;
Steven Yari and Jane Doe Yari, a Married Couple; and Bob Agahl and
Jane Doe Agahl, a Married Couple, the Defendants, Case No.
2:18-cv-04684-SMM (D. Ariz., Dec. 14, 2018), seeks to recover
unpaid minimum and overtime wages, liquidated damages, interest,
attorneys' fees, and costs under the Fair Labor Standards Act.
According to the complaint, the Plaintiff brings this action on
behalf of himself and all similarly-situated current and former
servers and bartenders of Defendants who were compensated at a rate
of less than the applicable Arizona and federal minimum wage on
account of receiving tips in a given workweek. The collective
members are all current and former servers and bartenders
who were employed by Defendants at any time starting three years
before this complaint.
The Defendants knew that -- or acted with reckless disregard as to
whether - their failure to pay Plaintiff and the Collective Members
one-and-one-half times their regular rate of pay for all time
worked in excess of 40 hours per workweek would violate federal and
state law, and Defendants were aware of FLSA overtime requirements
during Plaintiff's and the Collective Members' employment.
Tyc LLC is in the physical fitness clubs with training equipment
business.[BN]
Attorneys for Plaintiff:
Clifford P. Bendau, II, Esq.
Christopher J. Bendau, Esq.
BENDAU & BENDAU PLLC
Phoenix, AZ 85060
Telephone: (480) 382-5176
Facsimile: (480) 304-3805
E-mail: cliffordbendau@bendaulaw.com
chris@bendaulaw.com
UBER TECHNOLOGIES: Retirement Fund Can File 50+ Page Brief
----------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting Plaintiff's Administrative
Motion to File an Omnibus Brief in Opposition to Defendants'
Motions to Dismiss in the case captioned IRVING FIREMEN'S RELIEF &
RETIREMENT FUND, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, v. UBER TECHNOLOGIES INC., et al., Defendants.
Case No. 4:17-cv-05558-HSG. (N.D. Cal.).
Plaintiff Irving Firemen's Relief & Retirement Fund moved for
permission to file one omnibus brief in opposition to the
defendants' motions to dismiss not to exceed 50 pages. The Court,
having considered the papers filed, grants the plaintiff's
administrative motion to file an omnibus brief in opposition to the
defendants' motions to dismiss not to exceed 50 pages.
A full-text copy of the District Court's November 29, 2018 Order is
available at https://tinyurl.com/y9mgzkbr from Leagle.com.
Irving Firemen's Relief & Retirement Fund, Plaintiff, represented
by Angel Puimei Lau -- alau@rgrdlaw.com -- Robbins Geller Rudman
Dowd LLP, Brian Edward Cochran -- bcochran@rgrdlaw.com -- Robbins
Geller, et al., Jason A. Forge -- jforge@rgrdlaw.com -- Robbins
Geller Rudman and Dowd LLP, Jeffrey James Stein --
jstein@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Luke O.
Brooks -- lukeb@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP,
Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman &
Dowd LLP, Darryl James Alvarado -- dalvarado@rgrdlaw.com -- Robbins
Geller Rudman Dowd LLP, Erika Limpin Oliver -- eoliver@rgrdlaw.com
-- Robbins Geller Rudman Dowd LLP, Lucas F. Olts --
lolts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Darren Jay
Robbins -- darrenr@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP.
Uber Technologies, Defendant, represented by Alvin Matthew Ashley
-- mashley@irell.com -- Irell & Manella LLP, Andra Barmash Greene
-- agreene@irell.com -- Irell & Manella LLP, David Siegel --
dsiegel@irell.com -- Irell & Manella LLP, Michael David Harbour --
mharbour@irell.com -- Irell and Manella & Nathaniel H. Lipanovich
-- nlipanovich@irell.com -- Irell & Manella LLP.
UNITED STATES: Faces Habeas Corpus Suit in S.D. New York
--------------------------------------------------------
A "habeas corpus" class action lawsuit has been filed against
Thomas Decker, in his official capacity as Field Office Director,
U.S. Immigration and Customs Enforcement. The case is captioned as
URIEL VAZQUEZ PEREZ, individually and on behalf of all others
similarly situated, Plaintiff v. THOMAS DECKER, in his official
capacity as Field Office Director, U.S. Immigration and Customs
Enforcement; RONALD D. VITIELLO, in his official capacity as the
Acting Director for U.S. Immigration and Customs Enforcement;
KIRSTJEN NIELSEN, in her official capacity as Secretary, U.S.
Department of Homeland Security; JAMES MCHENRY, in his official
capacity as Director of the Executive Office For Immigration
Review; MATTHEW G. WHITAKER, in his official capacity as the Acting
Attorney General of the United States; UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; UNITED STATES IMMIGRATION AND CUSTOMS
ENFORCEMENT; UNITED STATES DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE
FOR IMMIGRATION REVIEW; and CARL E. DUBOIS, in his official
capacity as the Sheriff of Orange County and the official in charge
of the Orange County Correctional Facility, Defendants, Case No.
1:18-cv-10683-AJN (S.D.N.Y., Nov. 15, 2018). The case is assigned
to Judge Alison J. Nathan.[BN]
The Plaintiff is represented by:
Christopher T Dunn, Esq.
Paige Austin, Esq.
New York Civil Liberties Union
125 Broad Street, 17th floor
New York, NY 10004
Telephone: (212) 344-3005
Facsimile: (212) 344-3318
E-mail: cdunn@nyclu.org
paustin@nyclu.org
- and -
Jacqueline Pearce, Esq.
Peter L. Markowitz, Esq.
CARDOZO SCHOOL OF LAW, IMMIGRATION JUSTICE CLINIC
55 Fifth Avenue
New York, NY 10003
Telephone: (212) 790-0213
Facsimile: (212) 790-0256
E-mail: jacqueline.pearce@yu.edu
pmarkowi@yu.edu
VAN RU CREDIT: Alexander-Shrout Sues over Unwanted Phone Calls
--------------------------------------------------------------
SHARON ALEXANDER-SHROUT, individually and on behalf of all others
similarly situated, the Plaintiff, vs. VAN RU CREDIT CORPORATION,
the Defendant, Case No. 3:18-cv-06017 (W.D. Wash., Dec. 14, 2018),
seeks to recover damages, injunctive relief, and any other
available legal or equitable remedies, resulting from the illegal
actions of the Defendant, in negligently and/or intentionally
contacting Plaintiff on Plaintiff's cellular telephone, in
violation of the Telephone Consumer Protection Act, thereby
invading the Plaintiff's privacy.
According to the complaint, in or around February 2016, the
Defendant initiated a telephone call to Plaintiff's cellular
telephone number ending in 6527. The telephonic communication was
initiated from a telephone number displayed as (512) 549-8197. Upon
answering the call, a prerecorded voice came on the line and
prompted Plaintiff to press a button to be connected to a live
agent. The Plaintiff followed the prompt and was connected to a
live agent who she told to stop calling. In or around March 2016,
Defendant initiated another telephone call to Plaintiff's cellular
telephone number ending in 6527. Again, the telephonic
communication was initiated from a telephone number displayed as
(512) 549-8197. Upon answering the call, a prerecorded voice came
on the line and prompted Plaintiff to press a button to be
connected to a live agent, the lawsuit says.
Van Ru Credit Corporation provides accounts receivable management
solutions for education, energy, financial services, government,
healthcare, and telecommunications industries.[BN]
Attorneys for Plaintiff:
Ryan L. McBride, Esq.
Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP, APC
2633 E. Indian School Rd., Suite 460
Phoenix, AZ 85016
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ryan@kazlg.com
ak@kazlg.com
- and -
Joshua B. Swigart, Esq.
HYDE & SWIGART
2221 Camino Del Rio S., No. 101
San Diego, CA 92108
Telephone: (619) 233-7770
Facsimile: (619) 297-1022
E-mail: josh@westcoastlitigation.com
VISITING NURSE: McKoy Seeks Overtime Pay for Customer Service Reps
------------------------------------------------------------------
ADRIANNE McKOY, individually and on behalf of all others similarly
situated, the Plaintiff, vs. VISITING NURSE SERVICE OF NEW YORK,
and VISITING NURSE SERVICE OF NEW YORK HOME CARE, the Defendants,
Case No. 525201/2018 (N.Y. Sup. Ct., Dec. 14, 2018), seeks to
recover half-time premiums for hours worked in excess of 40 hours
in a workweek and other damages for Plaintiff and her similarly
situated co-workers, salaried Customer Service Representatives who
work or have worked for Defendants in New York, under the Fair
Labor Standards Act and New York Law Labor
According to the complaint, VNSNY operates one of the largest
non-profit health organizations in the United States, and offers
its services throughout the greater New York City area. McKoy was
employed by Defendants as a CSR from 2004 through the present.
During her employment as an CSR, McKoy generally worked over 40
hours per week and did not receive half-time premiums for hours
worked over 40 per week, the lawsuit says.[BN]
Attorneys for Plaintiff and the Putative Class:
Brian S. Schaffer, Esq.
Armando A. Ortiz, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street, 30th Floor
New York, NY 10005
Telephone: (212) 300-0375
WALGREENS BOOTS: Sold Mislabeled Tylenol Gelcaps, Brown Claims
--------------------------------------------------------------
ERIKA BROWN, individually and on behalf of all others similarly
situated, Plaintiff v. WALGREENS BOOTS ALLIANCE, INC., Defendant,
Case No. 1:18-cv-07585 (N.D. Ill., Nov. 15, 2018) alleges that the
Defendant misled and continues to mislead consumers about the
nature, quality, and effectiveness of its so-called fast-release
products, the Tylenol rapid release gelcaps.
According to the complaint, the Defendant's brand acetaminophen
Fast-Release Quick Gels are marketed as comparable to Tylenol Extra
Strength Rapid Release Gels even though, they do not contain the
unique laser drilled holes of Tylenol Extra Strength Rapid Release
Gels. The Defendant's version is nonetheless labeled and advertised
as a comparable to the "rapid release" product.
Despite what the Defendant's labeling and advertising would have
consumers believe, the term "fast-release" or "rapid release" do
not actually mean that the drug works faster for consumers than
non-fast or non-rapid release products. The same is true of the
brand name Tylenol rapid release products.
Walgreens Boots Alliance, Inc. operates as a pharmacy-led health
and wellbeing company. Walgreens Boots Alliance, Inc. was founded
in 1901 and is based in Deerfield, Illinois. [BN]
The Plaintiff is represented by:
Trent B. Miracle, Esq.
SIMMONS HANLY CONROY LLC
One Court Street
Alton, IL 62002
Telephone: (618) 259-2222
Facsimile: (618) 259-2222
E-mail: tmiracle@simmonsfirm.com
- and -
Mitchell M. Breit, Esq.
SIMMONS HANLY CONROY LLC
112 Madison Avenue
New York, NY 10016-7416
Telephone: (212) 784-6400
Facsimile: (212) 213-5949
E-mail: mbreit@simmonsfirm.com
WALLGREENS BOOTS: Delaware Class Suits Dismissed
------------------------------------------------
Walgreens Boots Alliance, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on December 20, 2018,
for the quarterly period ended November 30, 2018, that the class
action lawsuits in Delaware court have been dismissed.
The Company was also named as a defendant in eight putative class
action lawsuits filed in the Court of Chancery of the State of
Delaware (the "Delaware actions"). These actions were
consolidated, and plaintiffs filed a motion for preliminary
injunction seeking to enjoin the Rite Aid shareholder vote relating
to the Rite Aid Transactions. That motion was denied and the
plaintiffs in the Delaware actions agreed to settle this matter for
an immaterial amount.
The Delaware actions all have been dismissed.
Walgreens Boots Alliance, Inc. operates as a pharmacy-led health
and wellbeing company. It operates through three segments: Retail
Pharmacy USA, Retail Pharmacy International, and Pharmaceutical
Wholesale. Walgreens Boots Alliance, Inc. was founded in 1901 and
is based in Deerfield, Illinois.
WALLGREENS BOOTS: Merit Discovery Underway in Illinois Suit
-----------------------------------------------------------
Walgreens Boots Alliance, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on December 20, 2018,
for the quarterly period ended November 30, 2018, that merit
discovery is still ongoing in the putative shareholder class action
suit filed in the Northern District of Illinois.
On April 10, 2015, a putative shareholder filed a securities class
action in federal court in the Northern District of Illinois
against Walgreen Co. and certain former officers of Walgreen Co.
The action asserts claims for violation of the federal securities
laws arising out of certain public statements the Company made
regarding its former fiscal 2016 goals. On June 16, 2015, the Court
entered an order appointing a lead plaintiff.
Pursuant to the Court's order, lead plaintiff filed an amended
complaint on August 17, 2015, and defendants moved to dismiss the
amended complaint on October 16, 2015. On September 30, 2016, the
Court issued an order granting in part and denying in part
defendants' motion to dismiss.
Defendants filed their answer to the amended complaint on November
4, 2016 and filed an amended answer on January 16, 2017. Plaintiff
filed its motion for class certification on April 21, 2017. The
Court granted plaintiff's motion on March 29, 2018 and merits
discovery is proceeding.
Walgreens Boots Alliance, Inc. operates as a pharmacy-led health
and wellbeing company. It operates through three segments: Retail
Pharmacy USA, Retail Pharmacy International, and Pharmaceutical
Wholesale. Walgreens Boots Alliance, Inc. was founded in 1901 and
is based in Deerfield, Illinois.
WALLGREENS BOOTS: Rite Aid Merger-Related Suit Still Ongoing
------------------------------------------------------------
Walgreens Boots Alliance, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on December 20, 2018,
for the quarterly period ended November 30, 2018, that the company
continues to defend itself in a merger related suit initiated by
purported Rite Aid stockholders.
The Company said it was aware of two putative class action lawsuits
filed by purported Rite Aid stockholders against Rite Aid and its
board of directors, Walgreens Boots Alliance and Victoria Merger
Sub, Inc. for claims arising out of the transactions contemplated
by the original Merger Agreement (prior to its amendment on January
29, 2017) (such transactions, the "Rite Aid Transactions").
One Rite Aid action was filed in the State of Pennsylvania in the
Court of Common Pleas of Cumberland County (the "Pennsylvania
action"), and one action was filed in the United States District
Court for the Middle District of Pennsylvania (the "federal
action").
The Pennsylvania action primarily alleged that the Rite Aid board
of directors breached its fiduciary duties in connection with the
Rite Aid Transactions by, among other things, agreeing to an unfair
and inadequate price, agreeing to deal protection devices that
preclude other bidders from making successful competing offers for
Rite Aid and failing to disclose all allegedly material information
concerning the proposed merger, and also alleged that Walgreens
Boots Alliance and Victoria Merger Sub, Inc. aided and abetted
these alleged breaches of fiduciary duty. There has been no
activity in this lawsuit since the complaint was filed.
The federal action alleged, among other things, that Rite Aid and
its board of directors disseminated an allegedly false and
misleading proxy statement in connection with the Rite Aid
Transactions. The plaintiffs in the federal action also filed a
motion for preliminary injunction seeking to enjoin the Rite Aid
shareholder vote relating to the Rite Aid Transactions. That motion
was denied, and the matter was stayed.
On March 17, 2017, plaintiffs moved to lift the stay to allow
plaintiffs to file an amended complaint. That motion was granted,
and plaintiffs filed their amended complaint on December 11, 2017,
alleging that the Company and certain of its officers (the
"Walgreens Boots Alliance Defendants") made false or misleading
statements regarding the Rite Aid Transactions.
On July 11, 2018, the Court denied the Company's motion to dismiss,
but narrowed the time scope of the subject statements. The Company
filed an answer and affirmative defenses on August 8, 2018, and on
August 24, 2018 filed a new motion to dismiss based on the named
plaintiff's lack of standing. The Court granted that motion on
October 24, 2018.
On November 2, 2018, plaintiff's counsel filed a new lawsuit making
identical claims on behalf of a new set of plaintiffs against only
the Walgreens Boots Alliance Defendants. The Court named the new
group of plaintiffs as lead plaintiffs and named plaintiffs'
counsel as lead plaintiffs' counsel in the case going forward.
Walgreens Boots Alliance, Inc. operates as a pharmacy-led health
and wellbeing company. It operates through three segments: Retail
Pharmacy USA, Retail Pharmacy International, and Pharmaceutical
Wholesale. Walgreens Boots Alliance, Inc. was founded in 1901 and
is based in Deerfield, Illinois.
WARNER MUSIC: Class Suit over Digital Download Pricing Dismissed
----------------------------------------------------------------
Warner Music Group Corp. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on December 20, 2018,
for the fiscal year ended September 30, 2018, that a district court
has dismissed the case related to the pricing of digital music
downloads.
On December 20, 2005 and February 3, 2006, the Attorney General of
the State of New York served the Company with requests for
information in connection with an industry-wide investigation as to
the pricing of digital music downloads. On February 28, 2006, the
Antitrust Division of the U.S. Department of Justice served us with
a Civil Investigative Demand, also seeking information relating to
the pricing of digitally downloaded music.
Both investigations were ultimately closed, but subsequent to the
announcements of the investigations, more than thirty putative
class action lawsuits were filed concerning the pricing of digital
music downloads.
The lawsuits were consolidated in the Southern District of New
York. The consolidated amended complaint, filed on April 13, 2007,
alleges conspiracy among record companies to delay the release of
their content for digital distribution, inflate their pricing of
CDs and fix prices for digital downloads. The complaint seeks
unspecified compensatory, statutory and treble damages.
On October 9, 2008, the District Court issued an order dismissing
the case as to all defendants, including the company. However, on
January 13, 2010, the Second Circuit vacated the judgment of the
District Court and remanded the case for further proceedings and on
January 10, 2011, the U.S. Supreme Court denied the defendants’
petition for Certiorari.
Upon remand to the District Court, all defendants, including the
Company, filed a renewed motion to dismiss challenging, among other
things, plaintiffs' state law claims and standing to bring certain
claims. The renewed motion was based mainly on arguments made in
defendants' original motion to dismiss, but not addressed by the
District Court.
On July 18, 2011, the District Court granted defendants' motion in
part, and denied it in part. Notably, all claims on behalf of the
CD-purchaser class were dismissed with prejudice. However, a wide
variety of state and federal claims remain for the class of
Internet download purchasers. On March 19, 2014, plaintiffs filed a
motion for class certification.
Plaintiffs filed an operative consolidated amended complaint on
September 25, 2015. The Company filed its answer to the fourth
amended complaint on October 9, 2015, and filed an amended answer
on November 3, 2015.
A mediation took place on February 22, 2016, but the parties were
unable to reach a resolution. On July 18, 2017, the District Court
denied plaintiffs' motion for class certification.
On August 1, 2017, plaintiffs filed a petition with the Second
Circuit seeking permission to appeal the district court's order
denying class certification. On August 11, 2017, defendants filed
their opposition to plaintiffs' petition.
On December 8, 2017, the Second Circuit denied plaintiffs' request
for leave to appeal the District Court’s order denying their
motion for class certification.
On May 8, 2018, the parties filed a joint stipulation to
voluntarily dismiss the case with prejudice, and on May 15, 2018,
the District Court dismissed the case.
Warner Music Group Corp. operates as a music-based content company
in the United States, the United Kingdom, and internationally. The
company operates in two segments, Recorded Music and Music
Publishing. The company was founded in 1929 and is headquartered in
New York, New York. Warner Music Group Corp. is a subsidiary of
Access Industries, Inc.
WCA MANAGEMENT: Fails to Pay OT to Drivers, Cash et al. Claim
-------------------------------------------------------------
TRACY CASH; GYASI EDMOND; PAUL MOORE; DENNIS PLATT; and DEMETRIK
EMERSON, individually and on behalf of all others similarly
situated, Plaintiffs v. WCA MANAGEMENT COMPANY, LP, Defendant, Case
No. 4:18-cv-04335 (S.D. Tex., Nov. 15, 2018) is an action against
the Defendant's failure to pay the Plaintiff and the class overtime
compensation for hours worked in excess of 40 hours per week.
The Plaintiffs were employed by the Defendant as drivers.
WCA Management Co LP operates as a waste management and remediation
company.[BN]
The Plaintiffs are represented by:
Shelly Davis-Smith, Esq.
THE DAVIS LAW FIRM
3100 Richmond Ave., Ste. 480
Houston, TX 77098
Telephone: (713) 349-9299
Facsimile: (713) 800-4974
E-mail: sms@davis-smithlaw.com
WINCO FOODS: 9th Cir. Remands Mitchell FCRA Suit
------------------------------------------------
The United States Court of Appeals, Ninth Circuit, issued a
Memorandum vacating the judgment of the District Court denying
Plaintiffs' Motion for Reconsideration in the case captioned GLORIA
MITCHELL, individually and on behalf of all others similarly
situated, Plaintiff-Appellant, v. WINCO FOODS, LLC, a Delaware
limited liability company, Defendant-Appellee. No. 17-35998. (9th
Cir.)
The district court dismissed her First Amended Complaint, filed as
a class action, for lack of standing.
Appellant Gloria Mitchell claims that her former employer, WinCo
Foods, LLC (WinCo), violated the Fair Credit Reporting Act (FCRA).
To establish standing, Mitchell must show how the specific
procedural violations alleged in this case actually harm, or
present a material risk of harm to protected interests. Mitchell's
pleadings claim only that WinCo's job application forms failed to
comply with the FCRA, but do not explain how those alleged
violations harmed, or presented a material risk of harm to, the
interests safeguarded by the statute.
To the extent Mitchell argues that she was confused by the FCRA
waiver and authorization, Mitchell's pleadings do not allege facts
sufficient to support an inference of confusion. The district court
therefore correctly concluded that her pleadings failed to
establish standing.
The Court agrees. The denial of Mitchell's motion for
reconsideration is therefore vacated, and the case is remanded for
the district court to grant leave to amend.
Mitchell has moved the Court to take judicial notice of documents
outside the district court record. That motion is denied.
A full-text copy of the Ninth Circuit's November 29, 2018
Memorandum is available at https://tinyurl.com/ya5ca44e from
Leagle.com.
XO GROUP: Rigrodsky & Long Files Securities Class Action
--------------------------------------------------------
Rigrodsky & Long, P.A. on Dec. 5 disclosed that it has filed a
class action complaint in the United States District Court for the
District of Delaware on behalf of holders of XO Group Inc. ("XO
Group") (NYSE: XOXO) common stock in connection with the proposed
acquisition of XO Group by WeddingWire, Inc. and its affiliate
("WeddingWire") announced on September 25, 2018 (the "Complaint").
The Complaint, which alleges violations of the Securities Exchange
Act of 1934 against XO Group and its Board of Directors (the
"Board"), is captioned Scarantino v. XO Group Inc., Case No.
1:18-cv-01814 (D. Del.).
If you wish to discuss this action or have any questions concerning
this notice or your rights or interests, please contact plaintiff's
counsel, Seth D. Rigrodsky or Gina M. Serra at Rigrodsky & Long,
P.A., 300 Delaware Avenue, Suite 1220, Wilmington, DE 19801, by
telephone at (888) 969-4242, by e-mail at info@rl-legal.com, or at
http://rigrodskylong.com/contact-us/.
On September 24, 2018, XO Group entered into an agreement and plan
of merger (the "Merger Agreement") with WeddingWire. Pursuant to
the terms of the Merger Agreement, shareholders of XO Group will
receive $35.00 in cash for each share of XO Group stock they own
(the "Proposed Transaction").
Among other things, the Complaint alleges that, in an attempt to
secure shareholder support for the Proposed Transaction, defendants
issued materially incomplete disclosures in a proxy statement (the
"Proxy Statement") filed with the United States Securities and
Exchange Commission. The Complaint alleges that the Proxy
Statement omits material information with respect to, among other
things, XO Group's financial projections and the analyses performed
by XO Group's financial advisor. The Complaint seeks injunctive
and equitable relief and damages on behalf of holders of XO Group
common stock.
If you wish to serve as lead plaintiff, you must move the Court no
later than February 4, 2018. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Any member of the proposed class may move the Court to
serve as lead plaintiff through counsel of their choice, or may
choose to do nothing and remain an absent class member.
With offices in Delaware, New York, and California, Rigrodsky &
Long, P.A. -- http://www.rigrodskylong.com-- has recovered
hundreds of millions of dollars on behalf of investors and achieved
substantial corporate governance reforms in numerous cases
nationwide, including federal securities fraud actions, shareholder
class actions, and shareholder derivative actions. [GN]
XPO LOGISTICS: Labul Sues Over False, Misleading Reports
---------------------------------------------------------
Larry Labul, individually and on behalf of all others similarly
situated, Plaintiff, v. XPO Logistics, Inc., Bradley S. Jacobs, and
John J. Hardig, Defendants, Case No. 3:18-cv-02062 (D. Conn.,
December 14, 2018) is a federal securities class action on behalf
of all persons and entities who purchased or otherwise acquired XPO
securities between February 26, 2014, and December 12, 2018, both
dates inclusive, seeking to recover damages caused by Defendants'
violations of the federal securities laws and to pursue remedies
under the Securities Exchange Act of 1934.
On September 2, 2011, Defendant Bradley S. Jacobs, through an
equity investment led by Jacobs Private Equity, LLC, acquired a 71%
ownership interest in Express-1. Jacobs assumed the roles of
Chairman of the Board of Directors and Chief Executive Officer and
renamed the Company "XPO Logistics, Inc". XPO has completed
seventeen acquisitions since Jacobs took control of the Company,
deploying $6.1 billion of capital. Jacobs's tenure at XPO has been
characterized by an aggressive mergers and acquisitions ("M&A")
strategy. After Jacobs took control of the Company, Fortune
Magazine noted that XPO "has grown from $177 million in sales in
2011 to $17 billion today, thanks largely to an incredible run of
acquisitions". On August 2, 2017, Jacobs announced plans to earmark
up to $8 billion for additional acquisitions.
On December 12, 2018, Spruce Point Capital Management published a
report regarding XPO, entitled "Trucking Ridiculous; End of the
Road". The Spruce Point report asserted that a "forensic
investigation" into XPO had revealed "financial irregularities that
conveniently cover the Company's growing financial strain and
inability to complete additional acquisitions despite repeated
promises". Spruce Point reported that it had uncovered, among other
issues, "concrete evidence to suggest dubious tax accounting,
under-reporting of bad debts, phantom income through unaccountable
M&A earn-out labilities, and aggressive amortization assumptions:
all designed to portray glowing 'Non-GAAP' results". Following
publication of the Spruce Point report, XPO's stock price plunged
$15.77 per share, or 26.17%, to close at $44.50 on December 13,
2018.
According to the complaint, the Defendants made materially false
and misleading statements regarding the Company's business,
operational and compliance policies. Specifically, Defendants made
false and/or misleading statements and/or failed to disclose that:
(i) XPO's highly touted aggressive M&A strategy had yielded only
minimal returns to the Company; (ii) XPO was utilizing improper
accounting practices to mask its true financial condition,
including, under-reporting of bad debts and aggressive amortization
assumptions; and (iii) as a result, the Company's public statements
were materially false and misleading at all relevant times.
Moreover, as a result of Defendants' wrongful acts and omissions,
and the precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members have suffered
significant losses and damages, says the complaint.
Plaintiff acquired XPO common stock at artificially inflated prices
during the Class Period and was damaged upon the revelation of the
alleged corrective disclosures.
XPO is a Delaware corporation with its principal executive offices
located at Five American Lane, Greenwich, Connecticut 06831. XPO's
common stock trades in an efficient market on the NYSE under the
ticker symbol "XPO".
Jacobs has served at all relevant times the Chairman and CEO of
XPO.
John J. Hardig has served at all relevant times as the Chief
Financial Officer ("CFO") of XPO.[BN]
The Plaintiff is represented by:
Shannon L. Hopkins, Esq.
LEVI & KORSINSKY, LLP
733 Summer Street, Suite 304
Stamford, CT 06901
Telephone: (203) 992-4523
Facsimile: (212) 363-7171
Email: shopkins@zlk.com
- and -
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
Jonathan Lindenfeld, Esq.
POMERANTZ LLP
20th 600 Third Avenue, Floor
New York, NY 10016
Phone: (212) 661-1100
Facsimile: (212) 661-8665
Email: jalieberman@pomlaw.com
ahood@pomlaw.com
jlindenfeld@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
10 South La Salle Street, Suite 3505
Chicago, IL 60603
Phone: (312) 377-1181
Facsimile: (312) 377-1184
Email: pdahlstrom@pomlaw.com
XPO LOGISTICS: Leeman Sues Over Misstated Financial Reports
------------------------------------------------------------
Junita Leeman, individually and on behalf of all others similarly
situated, Plaintiff, v. XPO Logistics, Inc., Bradley Jacobs, John
Hardig, and Sarah Glickman, Defendants, Case No. 1:18-cv-11741
(S.D. N.Y., December 14, 2018) is a federal securities class action
on behalf of all investors who purchased or otherwise acquired
Defendant XPO Logistics Inc. common stock between August 10, 2015
and December 13, 2018, inclusive. This action is brought on behalf
of the Class for violations of the Securities Exchange Act of
1934.
According to the complaint, XPO was "cooking its books" to make it
appear that it was performing better than it was. The Defendants
engaged in fraudulent accounting schemes and other improper
accounting practices. At the core of Defendants' fraudulent scheme
was the method by which the Company accounted for its numerous
acquisitions, dubious tax accounting, under-reporting of bad debts,
phantom income through unaccountable acquisition earn-out
labilities, and aggressive amortization assumptions: all designed
to portray glowing "Non-GAAP" results. Meanwhile, throughout the
Class Period, Defendants represented that XPO's financial
statements complied with GAAP. As a result, XPO repeatedly
materially misstated its financial condition and operating results
in filings with the SEC and materially mislead Class Members, says
the complaint.
Junita Leeman is an individual residing in Bellevue, Washington.
Plaintiff acquired and held shares of the Company at artificially
inflated prices during the class period and has been damaged by the
revelation of the Company's material misrepresentations and
material omissions.
XPO is a Delaware corporation with its principal place of business
in Greenwich, Connecticut. The Company trades on the New York Stock
Exchange ("NYSE") stock exchange under the ticker symbol "XPO".
Bradley Jacobs has been the Chairman and Chief Executive Officer of
XPO since September 2, 2011.
John Hardig was the Chief Financial Officer for XPO from February
2012 until August 15, 2018.
Sarah Glickman has been the Acting Chief Financial Officer for XPO
since August 15, 2018.[BN]
The Plaintiff is represented by:
James S. Notis, Esq.
Jennifer Sarnelli, Esq.
GARDY & NOTIS, LLP
126 East 56th Street, 8th Floor
New York, NY 10022
Phone: (212) 905-0509
Fax: (212) 905-0508
Email: jnotis@gardylaw.com
jsarnelli@gardylaw.com
- and -
Jeffrey C. Block, Esq.
Jacob A. Walker, Esq.
Nathaniel Silver, Esq.
BLOCK & LEVITON LLP
155 Federal Street, Suite 400
Boston, MA 02110
Phone: (617) 398-5600
Fax: (617) 507-6020
Email: jeff@blockesq.com
jake@blockesq.com
nate@blockesq.com
YAHOO! INC: Womble Bond Discusses Ruling in TCPA Class Action
-------------------------------------------------------------
Artin Betpera, Esq. -- artin.betpera@wbd-us.com -- of Womble Bond
Dickinson (US) LLP, in an article for The National Law Review,
reports that a District Court in the Northern District of Illinois
reconsidered a ruling it made back in 2014 denying Yahoo!'s summary
judgment motion, and granted the motion in light of ACA Int'l.
Johnson v. Yahoo!, Inc., No. 14-cv-02028 (N.D. Ill. Nov. 29, 2018).
Notably, this is now the second court outside the Ninth Circuit to
expressly refuse to follow Marks on the basis there's no ambiguity
in the statutory definition of ATDS.
Back in 2014, the court in Johnson had reluctantly followed the
FCC's 2003, 2008, and 2012 rulings that interpreted ATDS "to
include systems that dialed numbers pulled from a stored list
without human intervention," and denied Yahoo!'s MSJ as a result.
At that time, the court "didn't agree" with the FCC's "expansive
interpretation," of the statutory definition of the ATDS, but
applied it because it was bound to do so under Seventh Circuit
precedent (holding that FCC rulings are binding under the Hobbs
Act). Notably though, the court gave a hat-tip to the PDR case and
recognized that this might change given the Supreme Court's grant
of certiorari to determine the binding effect of FCC rulings under
the Hobbs Act.
But putting PDR aside, the court found it was no longer bound by
the FCC's prior predictive dialer rulings because all of those
rulings were set aside by the D.C. Circuit in ACA Int'l. The court
recognized that while the appeal was based on direct-review
petitions from the 2015 order, the D.C. Circuit's opinion
"encompassed a review of all 'pertinent pronouncements' by the
FCC," set aside the FCC's overall "treatment of the qualifying
functions of an ATDS," and thus "wiped the slate clean." The
court's conclusion was further supported by the FCC's 2015 ruling
itself in which the Commission "reviewed its past treatment of ATDS
functionality, and . . . understood its option to revisit its
definition when confronted with arguments about the statutory
text." And because the FCC had "reaffirmed and reiterated its
approach," it had "brought the entire agency definition of ATDS up
for review in the D.C. Circuit." Makes perfect sense, and is in
line with the reasoning of numerous other courts on this point.
Turning to the statutory definition, the court recognized that
"some" courts – including the Ninth Circuit in Marks – "think
the statutory language is ambiguous enough to include a device that
dials numbers from a stored list (without random or sequential
number generation." But the court "read the statute differently,"
than Marks and found the definition of ATDS is "not ambiguous."
You know. Because it isn't. The court then reasoned:
The phrase "using a random or sequential number generator" applies
to the numbers to be called and an ATDS must either store or
produce those numbers (and them dial them). Curated lists
developed without random or sequential number generation capacity
fall outside the statute's scope.
Notably, the court found that its interpretation didn't render the
term "store" in the statutory definition superfluous:
The word "store" ensures that a system that generated random
numbers and did not dial them immediately, but instead stored them
for later automatic dialing (after, for example,
Based on its findings the court held Yahoo!'s text message platform
wasn't an ATDS because it lacked the requisite functionality, and
granted summary judgment in Yahoo!'s favor.
As Womble Bond Dickinson (US) LLP reported a few weeks ago, the
Roark court was the first to expressly decline to follow Marks.
Johnson makes it two, and the court's ruling hits all the good
points. Is this the start of a trend outside the Ninth Circuit?
We'll see. [GN]
Asbestos Litigation
ASBESTOS UPDATE: 197 Cases vs. CECO Still Pending at Sept. 30
-------------------------------------------------------------
CECO Environmental Corp. continues to face 197 pending
asbestos-related cases as of September 30, 2018, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended September 30, 2018.
The Company states, "Our subsidiary, Met-Pro Technologies LLC
("Met-Pro"), beginning in 2002, began to be named in
asbestos-related lawsuits filed against a large number of
industrial companies including, in particular, those in the pump
and fluid handling industries. In management's opinion, the
complaints typically have been vague, general and speculative,
alleging that Met-Pro, along with the numerous other defendants,
sold unidentified asbestos-containing products and engaged in other
related actions which caused injuries (including death) and loss to
the plaintiffs. Counsel has advised that more recent cases
typically allege more serious claims of mesothelioma. The
Company's insurers have hired attorneys who, together with the
Company, are vigorously defending these cases. Many cases have
been dismissed after the plaintiff fails to produce evidence of
exposure to Met-Pro's products. In those cases, where evidence has
been produced, the Company's experience has been that the exposure
levels are low and the Company's position has been that its
products were not a cause of death, injury or loss. The Company
has been dismissed from or settled a large number of these cases.
Cumulative settlement payments from 2002 through September 30, 2018
for cases involving asbestos-related claims were US$2.9 million, of
which, together with all legal fees other than corporate counsel
expenses, US$2.8 million has been paid by the Company's insurers.
The average cost per settled claim, excluding legal fees, was
approximately US$38,000.
"Based upon the most recent information available to the Company
regarding such claims, there were a total of 197 cases pending
against the Company as of September 30, 2018 (with Illinois, New
York, Pennsylvania and West Virginia having the largest number of
cases), as compared with 218 cases that were pending as of December
31, 2017. During the nine months ended September 30, 2018, 70 new
cases were filed against the Company, and the Company was dismissed
from 52 cases and settled 39 cases. Most of the pending cases have
not advanced beyond the early stages of discovery, although a
number of cases are on schedules leading to or scheduled for trial.
The Company believes that its insurance coverage is adequate for
the cases currently pending against the Company and for the
foreseeable future, assuming a continuation of the current volume,
nature of cases and settlement amounts. However, the Company has
no control over the number and nature of cases that are filed
against it, nor as to the financial health of its insurers or their
position as to coverage. The Company also presently believes that
none of the pending cases will have a material adverse impact upon
the Company's results of operations, liquidity or financial
condition."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2TRjTdE
ASBESTOS UPDATE: 28-Year Asbestos Class Action Settled
------------------------------------------------------
Chron.com reported that an asbestos class action lawsuit filed
nearly three decades ago by thousands of chemical and refinery
workers in Southeast Texas and Southwest Louisiana has finally
ended. Sadly, only 3 percent of those injured are still alive to
collect their checks.
Beaumont law firm Provost Umphrey is currently finalizing checks
and distribution paperwork for more than 2,000 asbestos clients and
their heirs, thanks to a recent arbitration panel that awarded the
clients $140 million. A three-judge arbitration panel award comes
in addition to a previously agreed $38 million settlement that the
plaintiffs were promised by the bankruptcy trust of the defendant,
Pittsburgh Corning Corp.
The outcome, according to plaintiffs' attorney Bryan Blevins, is
bittersweet, given the fact that only about 70 of the original
asbestos plaintiffs have survived the process.
ASBESTOS UPDATE: ADEQ Inks CAO Addressing Asbestos Rules
--------------------------------------------------------
JD Supra reported that the Arkansas Department of Environmental
Quality ("ADEQ") and Conquest Properties LLC ("CP") entered into a
December 3rd Consent Administrative Order ("CAO") addressing
alleging violations of Arkansas Pollution Control and Ecology
Commission Regulation 21 (Asbestos Rules). See LIS No. 18-094.
CP is stated to have begun renovation activities at a structure in
Little Rock, Arkansas, on or before May 2nd.
The CAO provides that as defined in Arkansas Pollution Control and
Ecology Commission Regulation 21, Chapter 4, that:
The structure in question constituted a "facility"
CP meets the definition of an owner or operator of a demolition or
renovation activity ADEQ is stated to have received a complaint
that renovation of the facility was being conducted. It is further
provided that during the complaint investigation conducted by ADEQ
it was determined that CP failed to conduct or have conducted a
thorough asbestos inspection of the affected facility prior to
renovation. Such alleged failure violates Arkansas Pollution
Control and Ecology Commission Reg. 21.501.
CP is further alleged to have failed to submit a written Notice of
Intent and appropriate fee to ADEQ at least 10 working days prior
to beginning asbestos stripping, removal work, or any other
activity. The company subsequently submitted an asbestos inspection
to ADEQ which is stated to indicate that asbestos was present in
areas identified in a table in the CAO.
CP subsequently submitted a NOI to ADEQ for abatement activities at
the site. Further, CP is stated to have provided ADEQ with
documents indicating asbestos abatement at the site was completed.
A civil penalty of $1,250 is assessed, which could be reduced by
one-half if the document was signed and returned to ADEQ by
December 1st.
ASBESTOS UPDATE: ArvinMeritor Had 1,400 Pending Claims at Sept. 30
------------------------------------------------------------------
Meritor, Inc.'s subsidiary, ArvinMeritor, Inc., still faces
approximately 1,400 pending active asbestos claims in lawsuits at
September 30, 2018, according to the Company's Form 10-K filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended September 30, 2018.
The Company states, "ArvinMeritor, Inc. ("AM"), a predecessor of
Meritor, along with many other companies, has also been named as a
defendant in lawsuits alleging personal injury as a result of
exposure to asbestos used in certain components of Rockwell
products many years ago. Liability for these claims was
transferred at the time of the spin-off of the automotive business
from Rockwell in 1997. Rockwell had approximately 1,400 and 1,600
pending active asbestos claims in lawsuits that name AM, together
with many other companies, as defendants at September 30, 2018 and
2017, respectively.
"A significant portion of the claims do not identify any of
Rockwell's products or specify which of the claimants, if any, were
exposed to asbestos attributable to Rockwell's products, and past
experience has shown that the vast majority of the claimants will
likely never identify any of Rockwell's products. Historically, AM
has been dismissed from the vast majority of similar claims filed
in the past with no payment to claimants. For those claimants who
do show that they worked with Rockwell's products, management
nevertheless believes it has meritorious defenses, in substantial
part due to the integrity of the products involved and the lack of
any impairing medical condition on the part of many claimants."
A full-text copy of the Form 10-K is available at
https://bit.ly/2P8mrjX
ASBESTOS UPDATE: ArvinMeritor Had US$105MM Reserves at Sept. 30
---------------------------------------------------------------
Meritor, Inc.'s subsidiary, ArvinMeritor, Inc., had reserves of
US$105 million for asbestos-related liabilities at September 30,
2018, according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
September 30, 2018. Of this amount, US$103 million was attributed
to pending and future claims while US$2 million was for billed but
unpaid claims.
The Company states, "ArvinMeritor, Inc. ("AM"), a predecessor of
Meritor, along with many other companies, has also been named as a
defendant in lawsuits alleging personal injury as a result of
exposure to asbestos used in certain components of Rockwell
products many years ago. Liability for these claims was
transferred at the time of the spin-off of the automotive business
from Rockwell in 1997.
"The company engaged a third-party advisor with extensive
experience in assessing asbestos-related liabilities to conduct a
study to estimate its potential undiscounted liability for pending
and future asbestos-related claims as of September 30, 2018. On a
continual basis, management monitors the underlying claims data and
experience, for the purpose of assessing the appropriateness of the
assumptions used to estimate the liability. The increase in the
estimated liability from the prior year study at both the low end
and high end reflects a change in the forecast horizon utilized to
estimate future claims, excluding legal costs and any potential
recovery from insurance carriers. Previously, the company's
pending and future claims estimates were based on a ten-year
forecast period. In fiscal year 2018, the company moved to a
penultimate horizon for estimating our pending and future claims
estimates. The penultimate horizon is defined as the
second-to-last day of claims estimated to occur. The longer
horizon estimate is now considered reasonable based on factors
including the company's recent history and experience, the
disciplined management of asbestos related litigation, an
observance of trends indicating diminished volatility and greater
consistency in the company's observable claims data, the maturity
of the asbestos litigation overall and experience in recent
insurance negotiations.
"As of September 30, 2018, the estimated probable range of equally
likely possibilities of the company's obligation for
asbestos-related claims over the next 41 years is US$103 million to
US$186 million. Based on the information contained in the
actuarial study, and all other available information considered,
management concluded that no amount within the range of potential
liability was more likely than any other and, therefore, recorded
the low end of the range. The company recognized a liability for
pending and future claims over the next 41 years of US$103 million
as of September 30, 2018 compared to the ten-year liability of
US$63 million as of September 30, 2017. The ultimate cost of
resolving pending and future claims is estimated based on the
history of claims and expenses for plaintiffs represented by law
firms in jurisdictions with an established history with Rockwell.
"Rockwell has insurance coverage that management believes covers
indemnity and defense costs, over and above self-insurance
retentions, for a significant portion of these claims. In 2004,
the company initiated litigation against certain of these carriers
to enforce the insurance policies. During the fourth quarter of
fiscal year 2016, the company executed settlement agreements with
two of these carriers, thereby resolving the litigation against
those particular carriers. Pursuant to the terms of one of those
settlement agreements, in the fourth quarter of fiscal year 2016
the company received US$32 million in cash from an insurer, of
which US$10 million was recognized as a reduction in asbestos
expense, and US$22 million was recorded as a liability to the
insurance carrier as it is required to be returned to the carrier
if additional asbestos liability is not ultimately incurred.
During fiscal years 2018 and 2017, Rockwell recognized an
additional US$12 million and US$10 million, respectively of the
cash settlement proceeds as a reduction in asbestos expense.
Pursuant to the terms of a second settlement agreement, in the
fourth quarter of fiscal year 2016 the company recorded a US$12
million receivable to reflect expected reimbursement of future
defense and indemnity payments under a coverage-in-place
arrangement with that insurer. During the fourth quarter of fiscal
year 2018, the company entered into a settlement agreement to
resolve additional disputed coverage resulting from asbestos
claims. On September 15, 2018, the company received US$3 million
in cash and US$28 million recorded as an insurance receivable
related to this settlement. The insurance receivables for
Rockwell's asbestos-related liabilities totaled US$68 million and
US$38 million as of September 30, 2018 and 2017, respectively.
Included in these amounts are increases to previous settlement
receivables resulting from the extended forecast horizon which led
to a balance of US$40 million for those previous settlement
receivables as of September 30, 2018.
"Also, during the third quarter of fiscal year 2016, the company
reached a settlement, relating to certain proofs of claim filed by
the company under certain insurance policies, with an insolvent
insurer for US$5.5 million (the "allowed claim"). On June 17,
2016, the company entered into an assignment of claim (the
"Assignment") with Macquarie Bank to assign the allowed claim the
company had against the insolvent insurer. The Assignment was
approved by the liquidator, which resulted in the company receiving
US$3 million in the third quarter of fiscal year 2016.
"The amounts recorded for the asbestos-related reserves and
recoveries from insurance companies are based upon assumptions and
estimates derived from currently known facts. All such estimates
of liabilities and recoveries for asbestos-related claims are
subject to considerable uncertainty because such liabilities and
recoveries are influenced by variables that are difficult to
predict. The future litigation environment for Rockwell could
change significantly from its past experience, due, for example, to
changes in the mix of claims filed against Rockwell in terms of
plaintiffs' law firm, jurisdiction and disease; legislative or
regulatory developments; the company's approach to defending
claims; or payments to plaintiffs from other defendants. Estimated
recoveries are influenced by coverage issues among insurers and the
continuing solvency of various insurance companies. If the
assumptions with respect to the estimation period, the nature of
pending claims, the cost to resolve claims and the amount of
available insurance prove to be incorrect, the actual amount of
liability for Rockwell asbestos-related claims, and the effect on
the company, could differ materially from current estimates and,
therefore, could have a material impact on the company's financial
condition and results of operations."
A full-text copy of the Form 10-K is available at
https://bit.ly/2P8mrjX
ASBESTOS UPDATE: Asbestos Coverage Issues Addressed in Carrier Corp
-------------------------------------------------------------------
On November 21, 2018, the New York Supreme Court, Onondaga County,
issued a summary-judgment ruling on a number of coverage issues
arising from asbestos-related bodily injury claims against
plaintiffs Carrier Corporation (Carrier) and Elliott Company
(Elliott). See Carrier Corp., et al. v. Travelers Indem. Co., et
al., Index No. 2005-EG-7032 (N.Y. Sup. Ct. Nov. 21, 2018).
First, the court held that under New York's "injury in fact trigger
of coverage," injury occurs from the first date of exposure to
asbestos through death or the filing of suit. The court primarily
relied on: (1) New York federal court decisions and the Delaware
Supreme Court's decision in In re Viking Pump, Inc., 148 A.3d 633
(Del. 2016) holding that injury continues from first exposure
through death or the assertion of a claim; and (2) medical and
scientific evidence that the plaintiffs had submitted in support of
their motion. The court specifically declined to follow Continental
Cas. v. Wausau, 60 A.D.3d 128 (1st Dep't 2008) (Keasbey), in which
the New York Appellate Division found a question of fact whether
injury occurs from exposure to asbestos through manifestation and
that summary judgment was therefore inappropriate. The Carrier
court stated that Keasbey was distinguishable because it "involved
operations coverage, a non-product claim, and thus the [Keasbey]
Court required a more stringent proof of injury in fact than is
necessary here, in a products case." Carrier, op. at 8. The Carrier
court was also dismissive of affidavits offered by the
defendant-insurer's medical experts, finding that the affidavits
did not create an issue of fact. See Op. at 2-9.
Second, the court found that Elliott had rights to coverage under
policies issued to Carrier for liabilities that arose before
Elliott was spun-off as a division of Carrier in 1981. The
plaintiffs established through deposition testimony that the
parties' intent was for all assets of the Elliott division,
including insurance rights, to transfer to the post-spinoff Elliott
entity. See id. at 9-14.
Third, the court ruled that the limits of underlying primary
policies were exhausted based on evidence that the primary insurer
had paid indemnity in excess of its policy limits. The court also
ruled that, in the absence of collusion, there was no basis to
question the propriety of the primary insurer's payment or
allocation of losses. See id. at 15 (citing In re E. 51st St. Crane
Collapse Litig., 103 A.D.3d 401 (1st Dep't 2013)).
Fourth, the court concluded that, because the excess policies at
issue contained non-cumulation clauses, "all sums" allocation and
vertical exhaustion applied under the New York Court of Appeals'
decision in In the Matter of Viking Pump, Inc., 52 N.E.3d 1144
(N.Y. 2016). The court rejected the insurer's assertion that "all
sums" allocation did not apply because the plaintiffs were seeking
coverage under concurrent, and not successive, excess policies. The
court explained that the insurer had not identified any claim for
which the plaintiffs were seeking coverage under concurrent
policies. The court further reasoned that, as the Viking Pump held,
an insured's settlement with underlying insurers does not
automatically render "all sums" allocation inapplicable in the
insured's dispute with a non-settled, higher-level insurer. See id.
at 16-18.
Fifth, the court determined that, under the non-cumulation clause,
the defendant-insurer was entitled to a reduction of its limits
only for amounts actually under paid on a particular claim (i.e., a
pro-tanto settlement credit) under a prior excess policy having the
same attachment point. The court held that the insurer had the
burden of proving it is entitled to a limit reduction for a
particular claim. In addition, the court found that the term
"loss," as used in the phrase "loss covered hereunder" in the
non-cumulation clause, refers to individual claims and not the
aggregate amount of loss incurred by the policyholder for all
claims of a similar type. See id. at 18-21.
JD Supra reported that sixth, the court ruled that, based on the
language in the excess policies at issue, the defendant-insurer had
no obligation to pay or reimburse defense costs incurred without
its consent. See id. at 22-24 (citing AstenJohnson v. Columbia Cas.
Co., 483 F. Supp. 2d 425 (E.D. Pa. 2007), aff'd in part, rev'd in
part, 562 F.3d 213 (3d Cir. Pa. 2009)).
Seventh, the court declared that excess policies at issue would be
reached upon a showing that amounts paid by the plaintiffs and the
directly underlying insurers exceeded the excess policies'
attachment points. Applying the so-called Zeig rule (which the
court referred to as the "fill the gap" rule), the court concluded
that "the law is clear in New York that when a policyholder enters
into a compromise Settlement Agreement with an underlying insurer
for less than its full coverage rights, an excess carrier is
obligated to provide coverage so long as the policyholder absorbs
the gap between the underlying insurer's payment and the attachment
point of the excess policy." Id. at 26 (citing, inter alia, Zeig v.
Massachusetts Bonding & Ins. Co., 23 F.2d 665 (2d Cir. 1928); Olin
Corp. v. OneBeacon, 864 F.3d 130 (2d Cir. 2017)).
The Carrier decision is particularly notable because it purports to
apply New York's "injury in fact trigger," which requires actual
injury during the policy period, but effectively adopts a
"continuous trigger," which presumes that injury occurs from first
exposure through manifestation of disease. The ruling, however, is
not binding in other cases and is subject to appeal.
ASBESTOS UPDATE: Ashland Global Had $380MM Reserve at Sept. 30
--------------------------------------------------------------
Ashland Global Holdings Inc. has US$380 million for asbestos
reserve at September 30, 2018, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended September 30, 2018.
The Company states, "The claims alleging personal injury caused by
exposure to asbestos asserted against Ashland result primarily from
indemnification obligations undertaken in 1990 in connection with
the sale of Riley, a former subsidiary. The amount and timing of
settlements and number of open claims can fluctuate from period to
period.
"From the range of estimates, Ashland records the amount it
believes to be the best estimate of future payments for litigation
defense and claim settlement costs, which generally approximates
the mid-point of the estimated range of exposure from model
results. Ashland reviews this estimate and related assumptions
quarterly and annually updates the results of a non-inflated,
non-discounted approximate 50-year model developed with the
assistance of Nathan.
"During the most recent update completed during 2018, it was
determined that the estimated liability for Ashland
asbestos-related claims should be decreased by US$8 million. Total
reserves for asbestos claims were US$380 million at September 30,
2018 compared to US$419 million at September 30, 2017.
A full-text copy of the Form 10-K is available at
https://bit.ly/2RniIRF
ASBESTOS UPDATE: Ashland Global Had 53,000 Open Claims at Sept. 30
------------------------------------------------------------------
Ashland Global Holdings Inc. disclosed in its Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended September 30, 2018, that there were 53,000 open
asbestos-related claims filed against the Company at September 30,
2018.
The Company states, "The claims alleging personal injury caused by
exposure to asbestos asserted against Ashland result primarily from
indemnification obligations undertaken in 1990 in connection with
the sale of Riley, a former subsidiary. The amount and timing of
settlements and number of open claims can fluctuate from period to
period.
"Ashland has insurance coverage for certain litigation defense and
claim settlement costs incurred in connection with its asbestos
claims, and coverage-in-place agreements exist with the insurance
companies that provide substantially all of the coverage that will
be accessed.
"For the Ashland asbestos-related obligations, Ashland has
estimated the value of probable insurance recoveries associated
with its asbestos reserve based on management's interpretations and
estimates surrounding the available or applicable insurance
coverage, including an assumption that all solvent insurance
carriers remain solvent. Substantially all of the estimated
receivables from insurance companies are expected to be due from
domestic insurers, all of which are solvent.
"At September 30, 2018, Ashland's receivable for recoveries of
litigation defense and claim settlement costs from insurers
amounted to US$140 million (excluding the Hercules receivable for
asbestos claims). Receivables from insurers amounted to US$155
million at September 30, 2017. During 2018, the annual update of
the model used for purposes of valuing the asbestos reserve and its
impact on valuation of future recoveries from insurers, was
completed. This model update resulted in a US$5 million decrease
in the receivable for probable insurance recoveries."
A full-text copy of the Form 10-K is available at
https://bit.ly/2RniIRF
ASBESTOS UPDATE: Bradshaw Couple Sues Ford Motor Over Lung Cancer
-----------------------------------------------------------------
Lhalie Castillo of St. Louis Record reported that a former Ford
Motor Co. employee and his wife allege exposure to asbestos during
his career caused him to develop lung cancer.
Gary Bradshaw and Jill Bradshaw filed a complaint on Nov. 16 in the
St. Louis 22nd Judicial Circuit Court against Crown, Cork & Seal
USA Co., et al. alleging negligence and other counts.
According to the complaint, the plaintiffs allege that at various
times during Gary Bradshaw's career at Ford Motor Co. in Michigan
from 1965 to 1998, he was exposed to and inhaled or ingested
asbestos fibers emanating from certain products manufactured, sold,
distributed or installed by defendants. The suit states that on or
about May 2, he first became aware that he developed lung cancer,
an asbestos-induced disease, and that the disease was wrongfully
caused. Jill Bradshaw alleges she has been deprived of society and
service of her husband as a result.
The plaintiffs hold Crown, Cork & Seal USA Co., et al. responsible
because the defendants allegedly intentionally included asbestos
fibers in their products when they knew that it had toxic,
poisonous and highly deleterious effect to human health and failed
to provide adequate warnings and instructions concerning the
dangers of working with or around products containing asbestos
fibers.
The plaintiffs request a trial by jury and seek compensatory
damages of no less than $50,000, costs and any further relief that
the court deems just and equitable. They are represented by Laci M.
Whitley of Flint Law Firm LLC in Edwardsville, Illinois and Jason
M. Ministrelli of Karst & von Oiste LLP in Spring, Texas.
St. Louis 22nd Judicial Circuit Court Case number 1822-CC11657
ASBESTOS UPDATE: C. Petrie Sues Novelis Over Husband's Cancer
-------------------------------------------------------------
Southeast Texas Record reported that a California woman is suing an
industrial aluminum company following the death of her husband from
a rare and aggressive cancer, recent Houston federal court records
show.
Charlotte Petrie brought a lawsuit against Novelis Corp. on behalf
of the late Larry Petrie and his estate on Nov. 29, attributing his
fatal mesothelioma diagnosis to exposure to the defendant’s
asbestos.
Court papers pinpoint the decedent's exposure to when he was a
child in the 1950's. According to the original petition, Larry
Petrie was exposed to asbestos by way of a product called
Snowdrift, which was manufactured by Novelis' predecessor.
The decedent, who was married to Charlotte Petrie for nearly 60
years, was diagnosed with Malignant Pleural Mesothelioma on Dec.
16, 2016. He succumbed to the illness last July 23.
"Larry Petrie suffered from a condition related to exposure to the
defendant's asbestos and asbestos-containing product, namely
malignant pleural mesothelioma," the original petition says. "Larry
Petrie was not aware at the time of exposure that the defendant's
asbestos-containing product Snowdrift presented a risk of injury
and disease nor was he old enough at the time to appreciate the
risk."
Consequently, his widow seeks unspecified monetary damages and a
jury trial.
The law firm Hendler Flores, PLLC in Austin is representing the
plaintiff.
Houston Division of the Southern District of Texas Case No.
4:18-CV-4522
ASBESTOS UPDATE: Cabot Corp. Faces 35,000 AO Claimants at Sept. 30
------------------------------------------------------------------
There were approximately 35,000 claimants as of September 30, 2018
in pending cases asserting claims against Cabot Corporation's
American Optical Corporation in connection with respiratory
products, according to Cabot's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
September 30, 2018.
The Company states, "We have exposure in connection with a safety
respiratory products business that a subsidiary acquired from
American Optical Corporation ("AO") in an April 1990 asset purchase
transaction. The subsidiary manufactured respirators under the AO
brand and disposed of that business in July 1995. In connection
with its acquisition of the business, the subsidiary agreed, in
certain circumstances, to assume a portion of AO's liabilities,
including costs of legal fees together with amounts paid in
settlements and judgments, allocable to AO respiratory products
used prior to the 1990 purchase by the Cabot subsidiary. In
exchange for the subsidiary's assumption of certain of AO's
respirator liabilities, AO agreed to provide to the subsidiary the
benefits of: (i) AO's insurance coverage for the period prior to
the 1990 acquisition and (ii) a former owner's indemnity of AO
holding it harmless from any liability allocable to AO respiratory
products used prior to May 1982.
"Generally, these respirator liabilities involve claims for
personal injury, including asbestosis, silicosis and coal worker's
pneumoconiosis, allegedly resulting from the use of respirators
that are alleged to have been negligently designed and/or labeled.
Neither Cabot, nor its past or present subsidiaries, at any time
manufactured asbestos or asbestos-containing products. At no time
did this respiratory product line represent a significant portion
of the respirator market.
"The subsidiary transferred the business to Aearo Corporation
("Aearo") in July 1995. Cabot agreed to have the subsidiary retain
certain liabilities associated with exposure to asbestos and silica
while using respirators prior to the 1995 transaction so long as
Aearo paid, and continues to pay, Cabot an annual fee of
US$400,000. Aearo can discontinue payment of the fee at any time,
in which case it will assume the responsibility for and indemnify
Cabot against those liabilities which Cabot's subsidiary had agreed
to retain. We anticipate that we will continue to receive payment
of the US$400,000 fee from Aearo and thereby retain these
liabilities for the foreseeable future. We have no liability in
connection with any products manufactured by Aearo after 1995.
"In addition to Cabot's subsidiary, other parties are responsible
for significant portions of the costs of respirator liabilities,
leaving Cabot's subsidiary with a portion of the liability in only
some of the pending cases. These parties include Aearo, AO, AO's
insurers, another former owner and its insurers, and a third-party
manufacturer of respirators formerly sold under the AO brand and
its insurers (collectively, with Cabot's subsidiary, the "Payor
Group").
"As of September 30, 2018 and 2017, there were approximately 35,000
and 37,000 claimants, respectively, in pending cases asserting
claims against AO in connection with respiratory products. Cabot
has contributed to the Payor Group's defense and settlement costs
with respect to a percentage of pending claims depending on several
factors, including the period of alleged product use. In order to
quantify our estimated share of liability for pending and future
respirator liability claims, we have engaged, through counsel, the
assistance of Nathan Associates, Inc. ("Nathan"), a leading
consulting firm in the field of tort liability valuation. The
methodology used by Nathan addresses the complexities surrounding
our potential liability by making assumptions about future
claimants with respect to periods of asbestos, silica and coal mine
dust exposure and respirator use. Using those and other
assumptions, Nathan estimates the number of future asbestos, silica
and coal mine dust claims that will be filed and the related costs
that would be incurred in resolving both currently pending and
future claims. On this basis, Nathan then estimates the value of
the share of these liabilities that reflect our period of direct
manufacture and our contractual obligations. During the three
months ended September 30, 2018, Nathan updated this estimate.
Based on the Nathan estimates, as of September 30, 2018, we
increased our reserve for our estimated share of the liability for
pending and future respirator claims by US$10 million to US$25
million. The increase reflects higher costs of defending and
resolving these claims. We made payments related to our respirator
liability of US$3 million in each of fiscal 2018, fiscal 2017 and
fiscal 2016.
"Our current estimate of the cost of our share of existing and
future respirator liability claims is based on facts and
circumstances existing at this time. Developments that could
affect our estimate include, but are not limited to, (i)
significant changes in the number of future claims, (ii) changes in
the rate of dismissals without payment of pending claims, (iii)
significant changes in the average cost of resolving claims, (iv)
significant changes in the legal costs of defending these claims,
(v) changes in the nature of claims received, (vi) changes in the
law and procedure applicable to these claims, (vii) the financial
viability of members of the Payor Group, (viii) a change in the
availability of the insurance coverage of the members of the Payor
Group or the indemnity provided by AO's former owner, (ix) changes
in the allocation of costs among the Payor Group, and (x) a
determination that the assumptions that were used to estimate our
share of liability are no longer reasonable. We cannot determine
the impact of these potential developments on our current estimate
of our share of liability for these existing and future claims.
Accordingly, the actual amount of these liabilities for existing
and future claims could be different than the reserved amount."
A full-text copy of the Form 10-K is available at
https://bit.ly/2zwSJ3d
ASBESTOS UPDATE: Canada Asbestos Ban Takes Effect Dec. 30
---------------------------------------------------------
Tire Business reported that Canada's ban on the manufacture,
import, export, sale and use of asbestos and asbestos-containing
products -- including brake pads -- will come into force on Dec.
30, the Canadian government noted recently.
After years of debate on the matter, the Canadian federal
government issued proposed new regulations in January to prohibit
the use, sale, import and export of asbestos and products that
contain it, as well as the manufacture of products containing the
cancer-causing mineral.
Some products and uses are excluded from these new regulations and
they do not apply to asbestos-containing products in use before the
day on which the regulations come into force -- such as brake pads
already installed in vehicles, according to the Automotive
Industries Association of Canada (AIA-C).
The use or sale of products remaining in inventory, however, will
be prohibited when the regulations come into force, the trade group
said.
"It is expected that automotive stakeholders would comply with the
regulations by switching from imports of friction materials
containing asbestos to asbestos-free friction materials, such as
ceramic brake pads or materials with synthetic fibers," according
to a federal government statement.
Using average import data from 2013 to 2016 for friction materials
containing asbestos, it is estimated that 333,000 brake pads
containing asbestos are imported on an annual basis, the AIA-C
said.
Assuming that there is a $5 incremental difference in price between
brake pads containing asbestos and asbestos-free brake pads, it is
expected that the automotive industry would carry operating costs
of approximately $21 million (Canadian) over the time frame of
analysis, the group said.
The federal government has projected that some of the costs to
industry will be passed down to customers. The extent to which
businesses are able to pass on the incremental costs to consumers
through higher prices would determine the ultimate distribution of
costs between businesses and consumers.
Asbestos-containing products will need to be disposed of. To
identify disposal practices, please refer to provincial/
territorial workplace health and safety and/or labor regulations,
the AIA-C recommended.
ASBESTOS UPDATE: Castleton Firm Fined $10K in Asbestos Case
-----------------------------------------------------------
Albany Times Union reported that a federal judge fined a Castleton
company $10,000 after false information was provided about asbestos
in a demolition project on Troy's King Street.
Over the summer M. Cristo admitted to accessory after the fact to a
false statement under the Clean Air Act, according to the U.S.
Attorney's office. U.S. District Judge Glenn T. Suddaby issued the
fine this week.
On Aug. 5, 2013, the contractor razed the 410 King St. buildings
that contained material with asbestos. The next day an employee
prepared a federally required Notification of Demolition and
Renovation Form, checking a box stating that asbestos was not
present.
The employee also claimed that another section of the form was "not
applicable" when asked specific questions about the types and
locations of asbestos material in the buildings.
Knowing that form was false, M. Cristo filed the document with the
U.S. Environmental Protection Agency regional office, violating
federal law, authorities said.
"Asbestos exposure can cause cancer, lung disease, and other
serious respiratory ailments," said Tyler Amon, an EPA special
agent-in-charge in a statement. "M. Cristo, Inc. ignored federal
law on asbestos removal by failing to hire certified asbestos
abatement professionals, and then falsely asserted to EPA that no
asbestos existed at the property. M. Cristo, Inc. incorrectly
claimed that emergency demolitions provided an exemption from
federal asbestos removal law.
"EPA will not allow businesses to circumvent environmental
standards and put the public's health at risk just to make a
profit," Amon said.
ASBESTOS UPDATE: Doctor Exposed to Asbestos in Hospital
-------------------------------------------------------
ITV News reported that a 43-year-old doctor is appealing to staff
who worked at a hospital in Coventry to come forward if they know
anything about the presence of asbestos in the building.
Dr Kate Richmond, who now lives in Australia, worked at Walsgrave
Hospital between 1998 and 2004.
She has been diagnosed with mesothelioma and given a life
expectancy of just two to three years.
Her legal team, Leigh Day Solicitors, suspect that her condition
may relate to her time as a medic at Walsgrave Hospital.
They claim they have spoken to demolition firms who say they
removed asbestos from the building.
ASBESTOS UPDATE: Emerson Electric Had $334MM Liability at Sept. 30
------------------------------------------------------------------
Emerson Electric Co. disclosed in its Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
September 30, 2018, that it has US$334 million as liability related
to asbestos litigation at September 30, 2018.
The Company also recorded US$124 million for asbestos-related
insurance receivables, which was included in other noncurrent
assets, at September 30, 2018.
A full-text copy of the Form 10-K is available at
https://bit.ly/2KHxL6m
ASBESTOS UPDATE: Enstar Group Had US$187.9MM Liability at Sept. 30
------------------------------------------------------------------
Enstar Group Limited recorded US$187.9 million for indemnity and
defense costs for pending and future claims at September 30, 2018,
determined using standard actuarial techniques for asbestos-related
exposures, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended September 30, 2018.
The Company states, "We acquired Dana Companies, LLC ("Dana") on
December 30, 2016. Dana continues to process asbestos personal
injury claims in the normal course of business and is separately
managed.
"Other liabilities included US$187.9 million and US$205.7 million
for indemnity and defense costs for pending and future claims at
September 30, 2018 and December 31, 2017, respectively, determined
using standard actuarial techniques for asbestos-related exposures.
Other liabilities also included US$2.1 million and US$2.2 million
for environmental liabilities associated with Dana properties at
September 30, 2018 and December 31, 2017, respectively.
"Other assets included US$114.8 million and US$122.3 million at
September 30, 2018 and December 31, 2017, respectively, for
estimated insurance recoveries relating to these liabilities. The
recorded asset represents our assessment of the capacity of the
insurance agreements to provide for the payment of anticipated
defense and indemnity costs for pending claims and projected future
demands. The recognition of these recoveries is based on an
assessment of the right to recover under the respective contracts
and on the financial strength of the insurers. The recorded asset
does not represent the limits of our insurance coverage, but rather
the amount we would expect to recover if the accrued indemnity and
defense costs were paid in full."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2SfWEbG
ASBESTOS UPDATE: G. Day Says Wife Had Secondary Asbestos Exposure
-----------------------------------------------------------------
St. Louis Record reported that a man alleges his late wife
developed mesothelioma as a result of secondary exposure to
asbestos.
Gerald Day filed a complaint on Nov. 9 in the St. Louis 22nd
Judicial Circuit Court against Alfa Laval Inc., Flowserve US Inc.,
Warren Pumps LLC, et al. alleging negligence and other counts.
According to the complaint, the plaintiff alleges that his wife,
Reba Day, was secondarily exposed to and inhaled or ingested
asbestos fibers emanating from certain products manufactured, sold,
distributed or installed by defendants.
The suit states that on or about June 22, his wife was diagnosed
with mesothelioma, an asbestos-induced disease, and she died on
July 4.
The plaintiff holds Alfa Laval Inc., Flowserve US Inc., Warren
Pumps LLC, et al. responsible because the defendants allegedly
failed to provide information regarding the safe handling and
cleaning apparel to avoid exposure to asbestos.
The plaintiff requests a trial by jury and seeks compensatory and
punitive damages of more than $25,000 costs and all other relief
that is just and proper. He is represented by Andrew A. O'Brien,
Christopher J. Thoron, Bartholomew J. Baumstark, Gerald J.
FitzGerald and Adam J. Reynolds of O'Brien Law Firm in St. Louis.
St. Louis 22nd Judicial Circuit Court case number 1822-CC11616
ASBESTOS UPDATE: Hercules LLC Had 13,000 Open Claims at Sept. 30
----------------------------------------------------------------
Ashland Global Holdings Inc. disclosed in its Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended September 30, 2018, that there are 13,000 open claims filed
against wholly-owned subsidiary Hercules LLC related to asbestos
matters at September 30, 2018.
The Company states, "Hercules has liabilities from claims alleging
personal injury caused by exposure to asbestos. Such claims
typically arise from alleged exposure to asbestos fibers from resin
encapsulated pipe and tank products which were sold by one of
Hercules' former subsidiaries to a limited industrial market. The
amount and timing of settlements and number of open claims can
fluctuate from period to period.
"For the Hercules asbestos-related obligations, certain
reimbursement obligations pursuant to coverage-in-place agreements
with insurance carriers exist. As a result, any increases in the
asbestos reserve have been partially offset by probable insurance
recoveries. Ashland has estimated the value of probable insurance
recoveries associated with its asbestos reserve based on
management's interpretations and estimates surrounding the
available or applicable insurance coverage, including an assumption
that all solvent insurance carriers remain solvent. The estimated
receivable consists exclusively of solvent domestic insurers.
"As of September 30, 2018 and 2017, the receivables from insurers
amounted to US$54 million and US$68 million, respectively. During
2018, the annual update of the model used for purposes of valuing
the asbestos reserve and its impact on valuation of future
recoveries from insurers was completed. This model update resulted
in a US$14 million decrease in the receivable for probable
insurance recoveries."
A full-text copy of the Form 10-K is available at
https://bit.ly/2RniIRF
ASBESTOS UPDATE: Hercules LLC Had US$282MM Reserve at Sept. 30
--------------------------------------------------------------
Ashland Global Holdings Inc. disclosed in its Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended September 30, 2018, that wholly-owned subsidiary Hercules LLC
had asbestos reserve of US$282 million at September 30, 2018.
The Company states, "Hercules has liabilities from claims alleging
personal injury caused by exposure to asbestos. Such claims
typically arise from alleged exposure to asbestos fibers from resin
encapsulated pipe and tank products which were sold by one of
Hercules' former subsidiaries to a limited industrial market. The
amount and timing of settlements and number of open claims can
fluctuate from period to period.
"From the range of estimates, Ashland records the amount it
believes to be the best estimate of future payments for litigation
defense and claim settlement costs, which generally approximates
the mid-point of the estimated range of exposure from model
results. Ashland reviews this estimate and related assumptions
quarterly and annually updates the results of a non-inflated,
non-discounted approximate 50-year model developed with the
assistance of Nathan. As a result of the most recent annual update
of this estimate, completed during 2018, it was determined that the
liability for Hercules asbestos-related claims should be decreased
by US$19 million. Total reserves for asbestos claims were US$282
million at September 30, 2018 compared to US$323 million at
September 30, 2017."
A full-text copy of the Form 10-K is available at
https://bit.ly/2RniIRF
ASBESTOS UPDATE: HII Continues to Defend PI Claims at Sept. 30
--------------------------------------------------------------
Huntington Ingalls Industries, Inc. still faces asbestos-related
claims alleging various injuries, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended September 30, 2018.
The Company states, "HII and its predecessors-in-interest are
defendants in a longstanding series of cases that have been and
continue to be filed in various jurisdictions around the country,
wherein former and current employees and various third parties
allege exposure to asbestos containing materials while on or
associated with HII premises or while working on vessels
constructed or repaired by HII.
"The cases allege various injuries, including those associated with
pleural plaque disease, asbestosis, cancer, mesothelioma, and other
alleged asbestos related conditions. In some cases, several of
HII's former executive officers are also named as defendants. In
some instances, partial or full insurance coverage is available to
the Company for its liability and that of its former executive
officers.
"The average cost per case to resolve cases during the nine months
ended September 30, 2018 and 2017, was immaterial individually and
in the aggregate. The Company's estimate of asbestos-related
liabilities is subject to uncertainty because liabilities are
influenced by numerous variables that are inherently difficult to
predict. Key variables include the number and type of new claims,
the litigation process from jurisdiction to jurisdiction and from
case to case, reforms made by state and federal courts, and the
passage of state or federal tort reform legislation. Although the
Company believes the ultimate resolution of current cases will not
have a material effect on its consolidated financial position,
results of operations, or cash flows, it cannot predict what new or
revised claims or litigation might be asserted or what information
might come to light and can, therefore, give no assurances
regarding the ultimate outcome of asbestos related litigation."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2r8CYej
ASBESTOS UPDATE: J. Valley Sue Ametek Over Asbestos Exposure
------------------------------------------------------------
Southeast Texas Record reported that a recently filed asbestos
lawsuit is seeking exemplary damages against dozens of companies.
Through The Provost Umphrey Law Firm, Louanna Valley, representing
the estate of James Valley, filed suit on Dec. 4 in Jefferson
County District Court.
Some of the defendants named in the suit include Ametek, A.W.
Chesterton, Flour Enterprises, General Electric, Owens Illinois and
Zurn Industries.
According to the lawsuit, James Valley was exposed to asbestos
products throughout his career. The "defective" asbestos products
were manufactured, sold and used by the defendants.
The suit alleges the defendants were negligent in failing to warn
him of the dangers.
The plaintiff further alleges gross negligence.
PU attorney Collin Moore represents the plaintiff.
Judge Donald Floyd, 172nd District Court, is assigned to the case.
Case No. E-203015
ASBESTOS UPDATE: Johnson Controls Has $550MM Liability at Sept. 30
------------------------------------------------------------------
Johnson Controls International plc estimated its asbestos-related
liability for pending and future claims and related defense costs
to be US$550 million as of September 30, 2018, according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended September 30, 2018.
Johnson Controls states, "The Company and certain of its
subsidiaries, along with numerous other third parties, are named as
defendants in personal injury lawsuits based on alleged exposure to
asbestos containing materials. These cases have typically involved
product liability claims based primarily on allegations of
manufacture, sale or distribution of industrial products that
either contained asbestos or were used with asbestos containing
components.
"As of September 30, 2018, the Company's estimated asbestos related
net liability recorded on a discounted basis within the Company's
consolidated statements of financial position was US$173 million.
The net liability within the consolidated statements of financial
position was comprised of a liability for pending and future claims
and related defense costs of US$550 million, of which US$55 million
was recorded in other current liabilities and US$495 million was
recorded in other noncurrent liabilities.
"The Company also maintained separate cash, investments and
receivables related to insurance recoveries within the consolidated
statements of financial position of US$377 million, of which US$33
million was recorded in other current assets and US$344 million was
recorded in other noncurrent assets. Assets included US$6 million
of cash and US$281 million of investments, which have all been
designated as restricted.
"In connection with the recognition of liabilities for
asbestos-related matters, the Company records asbestos-related
insurance recoveries that are probable; the amount of such
recoveries recorded at September 30, 2018 was US$90 million. As of
September 30, 2017, the Company's estimated asbestos related net
liability recorded on a discounted basis within the Company's
consolidated statements of financial position was US$181 million.
The net liability within the consolidated statements of financial
position was comprised of a liability for pending and future claims
and related defense costs of US$573 million, of which US$48 million
was recorded in other current liabilities and US$525 million was
recorded in other noncurrent liabilities.
"The Company also maintained separate cash, investments and
receivables related to insurance recoveries within the consolidated
statements of financial position of US$392 million, of which US$53
million was recorded in other current assets and US$339 million was
recorded in other noncurrent assets. Assets included US$22 million
of cash and US$269 million of investments, which have all been
designated as restricted. In connection with the recognition of
liabilities for asbestos-related matters, the Company records
asbestos-related insurance recoveries that are probable; the amount
of such recoveries recorded at September 30, 2017 was US$101
million."
A full-text copy of the Form 10-K is available at
https://bit.ly/2BEN3pg
ASBESTOS UPDATE: Judge Dismisses Ahnert Claims vs. EICW, et al.
---------------------------------------------------------------
U.S. District Judge Pamela Pepper approves the Parties'
Stipulations of Dismissal and orders that all claims, and causes of
action against defendants Employers Insurance Company of Wausau,
Sprinkmann Sons Corporation, and Wisconsin Electric Power Company
be dismissed from the case styled Beverly Ahnert, individually and
as Executrix of the Estate of Daniel Ahnert, Deceased, Plaintiff,
v. Employers Insurance Company Of Wausau, Sprinkmann Sons
Corporation, Wisconsin Electric Power Company, and PABST Brewing
Company Defendants. Beverly Ahnert, individually and as Executrix
of the Estate of Daniel Ahnert, Deceased, Plaintiff, v. Employers
Insurance Company of Wausau, PABST Brewing Company, Sprinkmann Sons
Corporation, and Wisconsin Electric Power Company, Defendants, Case
Nos. 2:10-cv-156-pp, 2:13-cv-1456-cnc, (E.D. Wis.).
A copy of the Order dated December 6, 2018, is available at
https://tinyurl.com/yccqtzma from Leagle.com.
Beverly Ahnert, Individually and as Executrix of the Estate of
Daniel Ahnert, Deceased,, Plaintiff, represented by Jin Ho Chung ,
Cascino Vaughan Law Offices Ltd., Daniel B. Hausman , Cascino
Vaughan Law Offices Ltd., Robert G. McCoy , Cascino Vaughan Law
Offices Ltd. & Michael P. Cascino , Cascino Vaughan Law Offices
Ltd.
Employers Insurance Company of Wausau, Sprinkmann Sons Corporation
& Wisconsin Electric Power Company, Defendants, represented by
James A. Niquet -- jniquet@crivellocarlson.com -- Crivello Carlson
SC & Travis J. Rhoades -- trhoades@crivellocarlson.com -- Crivello
Carlson SC.
Pabst Brewing Company, Defendant, represented by Edna L. McLain --
emclain@tresslerllp.com -- Tressler LLP & Joshua C. Schumacher --
jschumacher@heplerbroom.com -- Hepler Broom LLC.
ASBESTOS UPDATE: Judge Dismisses Clayton Claims vs. North Coast
---------------------------------------------------------------
U.S. District Judge James L. Robart for the Western District of
Washington dismissed with prejudice Plaintiffs' claims against
defendant North Coast Electric Company in the case styled William
R. Clayton and Jill D. Clayton, husband and wife, Plaintiffs, v.
IMO Industries, Inc., et al., Defendants, No. 2:18-cv-00748-JLR,
(W.D. Wash.).
Plaintiffs have agreed to dismiss their claims with prejudice
against defendant, North Coast Electric Company only, as alleged in
their complaint, and defendant has agreed to waive its fees and
costs incurred in this matter.
A copy of the Stipulation and Order dated Nov. 21, 2018, is
available at https://tinyurl.com/yckk6snk from Leagle.com.
William R. Clayton & Jill D. Clayton, husband and wife, Plaintiffs,
represented by Glenn S. Draper -- glenn@bergmanlegal.com -- Bergman
Draper Oslund, Matthew Phineas Bergman -- matt@bergmanlegal.com --
Bergman Draper Oslund & Ruby K. Aliment , Bergman Draper Oslund.
Air & Liquid Systems Corporation, successor in interest, Defendant,
represented by Kevin J. Craig -- kcraig@grsm.com -- Gordon Rees
Scully Mansukhani LLP, Mark B. Tuvim -- mtuvim@grsm.com -- Gordon
Rees Scully Mansukhani LLP & Trevor J. Mohr -- tmohr@grsm.com --
Gordon Rees Scully Mansukhani LLP.
Saberhagen Holdings Inc, successor in interest Tacoma Asbestos
Company, The Brower Company, Defendant, represented by Timothy Kost
Thorson -- thorson@carneylaw.com -- Carney Badley Spellman PS.
Warren Pumps LLC, individually successor in interest Quimby Pump
Company, Defendant, represented by Allen Eraut --
aeraut@rizzopc.com -- Rizzo Mattingly Bosworth PC.
Warren Pumps LLC, individually successor in interest Quimby Pump
Company, Defendant, represented by Shaun Mary Morgan --
smorgan@rizzopc.com -- Rizzo Mattingly Bosworth PC.
Vigor Shipyards Inc, a subsidiary of Vigor Shipyards Inc,
Defendant, represented by Walter Eugene Barton --
gbarton@karrtuttle.com -- Karr Tuttle Campbell.
Electrolux Home Products, Inc., Defendant, represented by Alice
Coles Serko -- aserko@tktrial.com -- Tanenbaum Keale LLP,
Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP &
Malika Johnson -- mjohnson@tktrial.com -- Tanenbaum Keale LLP.
Syd Carpenter Marine Contractor Inc, Consol Defendant, represented
by J. Scott Wood -- swood@foleymansfield.com -- Foley & Mansfield,
R Dirk Bernhardt -- dbernhardt@foleymansfield.com -- Foley &
Mansfield & Zackary A. Paal -- zpaal@foleymansfield.com -- Foley &
Mansfield.
Metropolitan Life Insurance Company, Consol Defendant, represented
by Richard G. Gawlowski -- gawlowski@wscd.com -- Wilson Smith
Cochran & Dickerson.
IMO Industries, Inc, individually and, Consol Defendant,
represented by James Edward Horne -- jhorne@gth-law.com -- Gordon
Thomas Honeywell & Michael Edward Ricketts -- mricketts@gth-law.com
-- Gordon Thomas Honeywell.
ASBESTOS UPDATE: Maremont Corp Had 1,700 Claims Pending at Sept. 30
-------------------------------------------------------------------
Meritor, Inc.'s subsidiary, Maremont Corporation, had around 1,700
pending asbestos-related claims at September 30, 2018, according to
the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended September 30, 2018.
The Company states, "Maremont Corporation ("Maremont"), a
subsidiary of Meritor, manufactured friction products containing
asbestos from 1953 through 1977, when it sold its friction product
business. Arvin Industries, Inc., a predecessor of ours, acquired
Maremont in 1986. Maremont and many other companies are defendants
in suits brought by individuals claiming personal injuries as a
result of exposure to asbestos-containing products.
"Maremont had approximately 1,700 and 2,800 pending
asbestos-related claims at September 30, 2018 and 2017,
respectively. Although Maremont has been named in these cases, in
the cases where actual injury has been alleged, very few claimants
have established that a Maremont product caused their injuries.
Plaintiffs' lawyers often sue dozens or even hundreds of defendants
in individual lawsuits, seeking damages against all named
defendants irrespective of the disease or injury and irrespective
of any causal connection with a particular product. For these
reasons, the total number of claims filed is not necessarily the
most meaningful factor in determining Maremont's asbestos related
liability."
A full-text copy of the Form 10-K is available at
https://bit.ly/2P8mrjX
ASBESTOS UPDATE: Maremont Corp. Had US$109MM Reserves at Sept. 30
-----------------------------------------------------------------
Meritor, Inc.'s subsidiary, Maremont Corporation, had reserves of
US$109 million for asbestos-related liabilities at September 30,
2018, according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
September 30, 2018. Specifically, US$107 million is for pending
and future claims while the remaining US$2 million is for billed
but unpaid claims.
The Company states, "Maremont Corporation ("Maremont"), a
subsidiary of Meritor, manufactured friction products containing
asbestos from 1953 through 1977, when it sold its friction product
business. Arvin Industries, Inc., a predecessor of ours, acquired
Maremont in 1986. Maremont and many other companies are defendants
in suits brought by individuals claiming personal injuries as a
result of exposure to asbestos-containing products.
"A portion of the asbestos-related recoveries and reserves are
included in Other Current Assets and Liabilities, with the majority
of the amounts recorded in Other Assets and Liabilities
"Maremont engaged a third-party advisor with extensive experience
in assessing asbestos-related liabilities to conduct a study to
estimate its potential undiscounted liability for pending and
future asbestos-related claims, as of September 30, 2018. On a
continual basis, management monitors the underlying claims data and
experience, for the purpose of assessing the appropriateness of the
assumptions used to estimate the liability. The increase in the
estimated liability from the prior year study at both the low end
and high end of the range reflects a change in the forecast horizon
utilized to estimate future claims, excluding legal costs and any
potential recovery from insurance carriers. Previously, Maremont's
pending and future claims estimates were based on a ten-year
forecast period. In fiscal year 2018, we moved to a penultimate
horizon for estimating Maremont's pending and future claims
estimates. The penultimate horizon is defined as the
second-to-last day of claims estimated to occur. The longer
horizon estimate is now considered reasonable based on factors
including Maremont's recent history and experience, the disciplined
management of asbestos related litigation, an observance of trends
indicating diminished volatility and greater consistency in
Maremont's observable claims data, the maturity of the asbestos
litigation overall and experience in recent insurance
negotiations.
"As of September 30, 2018, the estimated range of equally likely
possibilities of Maremont's obligation for asbestos-related claims
over the next 41 years was US$107 million to US$195 million. Based
on the information contained in the actuarial study, and all other
available information considered, Maremont concluded that no amount
within the range of potential liability was more likely than any
other and, therefore, recorded the low end of the range. Maremont
recognized a liability for pending and future claims over the next
41 years of US$107 million as of September 30, 2018 and a ten-year
liability of US$68 million as of September 30, 2017. The ultimate
cost of resolving pending and future claims is estimated based on
the history of claims and expenses for plaintiffs represented by
law firms in jurisdictions with an established history with
Maremont. Maremont recognized US$38 million and US$5 million of
expense in fiscal years 2018 and 2017, respectively, associated
with its annual valuation of asbestos-related liabilities and
receivables.
"Maremont has historically had insurance that reimburses a
meaningful portion of the costs incurred defending against
asbestos-related claims. The expected insurance receivable related
to future asbestos-related liabilities was US$24 million and US$25
million as of September 30, 2018 and 2017, respectively. The
receivable is for coverage primarily provided by one insurance
carrier based on a coverage-in-place agreement. Maremont currently
expects to exhaust the remaining limits provided by this coverage
sometime in the next three-to-five years. The difference between
the estimated liability and insurance receivable is primarily
related to exhaustion of settled insurance coverage within the
forecasted period and proceeds from settled insurance policies.
"Maremont maintained insurance coverage with other insurance
carriers that management believed also provided coverage for
indemnity and defense costs. During fiscal year 2013, Maremont
re-initiated lawsuits against these carriers, seeking a declaration
of its rights to coverage for asbestos claims and to facilitate an
orderly and timely collection of insurance proceeds. During the
first quarter of fiscal year 2016, the dispute related to these
insurance policies was settled. As part of this settlement, on
December 12, 2015, Maremont received US$17 million in cash, of
which US$5 million was recognized as a reduction in asbestos
expense and US$12 million was recorded as a liability to the
insurance carrier as it is required to be returned to the carrier
if additional asbestos liability is not incurred. During the
fourth quarter of fiscal year 2016, Maremont recognized an
additional US$9 million of the cash settlement proceeds as a
reduction in asbestos expense. During the first quarter of fiscal
year 2017, we recognized the remaining US$3 million of the cash
settlement proceeds as a reduction in asbestos expense. The
settlement also provides additional recovery for Maremont if
certain future defense and indemnity spending thresholds are met.
"The amounts recorded for the asbestos-related reserves and
recoveries from insurance companies are based upon assumptions and
estimates derived from currently known facts. All such estimates
of liabilities and recoveries for asbestos-related claims are
subject to considerable uncertainty because such liabilities and
recoveries are influenced by variables that are difficult to
predict. The future litigation environment for Maremont could
change significantly from its past experience, due, for example, to
changes in the mix of claims filed against Maremont in terms of
plaintiffs' law firm, jurisdiction and disease; legislative or
regulatory developments; Maremont's approach to defending claims;
or payments to plaintiffs from other defendants. Estimated
recoveries are influenced by coverage issues among insurers and the
continuing solvency of various insurance companies. If the
assumptions with respect to the estimation period, the nature of
pending and future claims, the cost to resolve claims and the
amount of available insurance prove to be incorrect, the actual
amount of liability for Maremont's asbestos-related claims, and the
effect on our liability, could differ materially from current
estimates and, therefore, could have a material impact on our
financial condition and results of operations."
A full-text copy of the Form 10-K is available at
https://bit.ly/2P8mrjX
ASBESTOS UPDATE: Mass. Co. Faces $28K Asbestos Penalty
------------------------------------------------------
Lowell Sun reported that an asbestos removal company faces a
$28,500 penalty because the state says they violated regulations
during a project at an occupied Ayer residence, according to a
Monday press release from the Massachusetts Department of
Environmental Protection.
Air Safe, Inc. of Chelsea has agreed to pay the penalty stemming
from an October 2017 state compliance inspection.
According to MassDEP, Air Safe employees left asbestos-containing
insulation on heating pipes and a window sill after the project was
completed despite being required to clean up and decontaminate all
affected parts of the home's basement.
For asbestos, a carcinogen, state regulations require sealing off
of the area and using air filtration until no visible debris
remains in the work area, according to the press release.
"These requirements are designed to prevent a release of asbestos
fibers to the environment to protect building occupants and the
general public from exposure to asbestos fibers and to preclude
other parts of the building from being contaminated," according to
the release.
David Walsh, owner of the Air Safe, Inc. of Chelsea, said the
company believes there was no wrongdoing, but settled with the
state "for expediency and expense" on the recommendation of their
attorneys.
Walsh said the company has since changed its procedures and
dismissed the person overseeing the project to "to make sure we
don't look suspect to any procedures the (MassDEP) would have an
issue with.
When asked about the response, MassDEP spokesman Ed Coletta said
the company signed the disposition order detailing the violation
and agreed to pay the penalty.
"They signed the agreement," he said.
Under the terms of the settlement, Air Safe will pay $18,000 of the
penalty. The additional $10,500 will be held for a year and charged
if the company has further violations, according to the release.
ASBESTOS UPDATE: MetLife Unit Had 2,558 New Cases Jan-Sept. 2018
----------------------------------------------------------------
MetLife, Inc.'s subsidiary, Metropolitan Life Insurance Company,
received approximately 2,558 new asbestos-related claims during the
nine months ended September 30, 2018, according to the Company's
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended September 30, 2018.
The Company states, "MLIC is and has been a defendant in a large
number of asbestos-related suits filed primarily in state courts.
These suits principally allege that the plaintiff or plaintiffs
suffered personal injury resulting from exposure to asbestos and
seek both actual and punitive damages. MLIC has never engaged in
the business of manufacturing, producing, distributing, or selling
asbestos or asbestos-containing products nor has MLIC issued
liability or workers' compensation insurance to companies in the
business of manufacturing, producing, distributing, or selling
asbestos or asbestos-containing products. The lawsuits principally
have focused on allegations with respect to certain research,
publication and other activities of one or more of MLIC's employees
during the period from the 1920's through approximately the 1950's
and allege that MLIC learned or should have learned of certain
health risks posed by asbestos and, among other things, improperly
publicized or failed to disclose those health risks. MLIC believes
that it should not have legal liability in these cases. The
outcome of most asbestos litigation matters, however, is uncertain
and can be impacted by numerous variables, including differences in
legal rulings in various jurisdictions, the nature of the alleged
injury and factors unrelated to the ultimate legal merit of the
claims asserted against MLIC. MLIC employs a number of resolution
strategies to manage its asbestos loss exposure, including seeking
resolution of pending litigation by judicial rulings and settling
individual or groups of claims or lawsuits under appropriate
circumstances.
"Claims asserted against MLIC have included negligence, intentional
tort and conspiracy concerning the health risks associated with
asbestos. MLIC's defenses (beyond denial of certain factual
allegations) include that: (i) MLIC owed no duty to the
plaintiffs-- it had no special relationship with the plaintiffs and
did not manufacture, produce, distribute, or sell the asbestos
products that allegedly injured plaintiffs; (ii) plaintiffs did not
rely on any actions of MLIC; (iii) MLIC's conduct was not the cause
of the plaintiffs' injuries; (iv) plaintiffs' exposure occurred
after the dangers of asbestos were known; and (v) the applicable
time with respect to filing suit has expired. During the course of
the litigation, certain trial courts have granted motions
dismissing claims against MLIC, while other trial courts have
denied MLIC's motions. There can be no assurance that MLIC will
receive favorable decisions on motions in the future. While most
cases brought to date have settled, MLIC intends to continue to
defend aggressively against claims based on asbestos exposure,
including defending claims at trials.
"As reported in the 2017 Annual Report, MLIC received approximately
3,514 asbestos-related claims in 2017. During the nine months
ended September 30, 2018 and 2017, MLIC received approximately
2,558 and 2,742 new asbestos-related claims, respectively. The
number of asbestos cases that may be brought, the aggregate amount
of any liability that MLIC may incur, and the total amount paid in
settlements in any given year are uncertain and may vary
significantly from year to year.
"The ability of MLIC to estimate its ultimate asbestos exposure is
subject to considerable uncertainty, and the conditions impacting
its liability can be dynamic and subject to change. The
availability of reliable data is limited and it is difficult to
predict the numerous variables that can affect liability estimates,
including the number of future claims, the cost to resolve claims,
the disease mix and severity of disease in pending and future
claims, the impact of the number of new claims filed in a
particular jurisdiction and variations in the law in the
jurisdictions in which claims are filed, the possible impact of
tort reform efforts, the willingness of courts to allow plaintiffs
to pursue claims against MLIC when exposure to asbestos took place
after the dangers of asbestos exposure were well known, and the
impact of any possible future adverse verdicts and their amounts.
"The ability to make estimates regarding ultimate asbestos exposure
declines significantly as the estimates relate to years further in
the future. In the Company's judgment, there is a future point
after which losses cease to be probable and reasonably estimable.
It is reasonably possible that the Company's total exposure to
asbestos claims may be materially greater than the asbestos
liability currently accrued and that future charges to income may
be necessary. While the potential future charges could be material
in the particular quarterly or annual periods in which they are
recorded, based on information currently known by management,
management does not believe any such charges are likely to have a
material effect on the Company's financial position.
"The Company believes adequate provision has been made in its
consolidated financial statements for all probable and reasonably
estimable losses for asbestos-related claims. MLIC's recorded
asbestos liability is based on its estimation of the following
elements, as informed by the facts presently known to it, its
understanding of current law and its past experiences: (i) the
probable and reasonably estimable liability for asbestos claims
already asserted against MLIC, including claims settled but not yet
paid; (ii) the probable and reasonably estimable liability for
asbestos claims not yet asserted against MLIC, but which MLIC
believes are reasonably probable of assertion; and (iii) the legal
defense costs associated with the foregoing claims. Significant
assumptions underlying MLIC's analysis of the adequacy of its
recorded liability with respect to asbestos litigation include: (i)
the number of future claims; (ii) the cost to resolve claims; and
(iii) the cost to defend claims.
"MLIC reevaluates on a quarterly and annual basis its exposure from
asbestos litigation, including studying its claims experience,
reviewing external literature regarding asbestos claims experience
in the United States, assessing relevant trends impacting asbestos
liability and considering numerous variables that can affect its
asbestos liability exposure on an overall or per claim basis.
These variables include bankruptcies of other companies involved in
asbestos litigation, legislative and judicial developments, the
number of pending claims involving serious disease, the number of
new claims filed against it and other defendants and the
jurisdictions in which claims are pending. Based upon its regular
reevaluation of its exposure from asbestos litigation, MLIC has
updated its liability analysis for asbestos-related claims through
September 30, 2018."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2QnLHaF
ASBESTOS UPDATE: MoD Probes Asbestos in Sea King Helicopters
------------------------------------------------------------
Vertical Magazine reported that serving personnel, veterans, former
Ministry of Defence (MoD) civilian personnel and contractors may
have seen media reports about asbestos being found in some sea king
helicopters. The MoD has undertaken an investigation and people
that may have had an association with the sea king might find the
following information useful in considering the possible risk of
exposure.
The Sea King first entered service in 1969 and the final aircraft
were retired from the active inventory on Sept. 30 2018.
Historically, asbestos containing material was used where
resistance to heat or an insulating property was required. In the
Sea King, this was principally in gaskets and seals located around
the engines, gearboxes, heating and ventilation systems. These
areas were exposed to routine maintenance activity.
Following investigation, Chrysotile (white) asbestos is the only
asbestos type that was used. As a consequence of the Departmental
Directive on Asbestos Elimination (c.1999), an asbestos elimination
plan for Sea King was implemented. By 2006, major components had
been replaced and remaining items were assessed as low risk and
contained inside components that were not routinely disassembled.
These were replaced with asbestos free alternatives when routine
maintenance allowed.
Earlier this year, a routine maintenance training activity being
conducted on a retired Sea King airframe revealed the presence of
asbestos within an exhaust panel seal. Subsequent investigation
identified that the MoD’s supply chain had not been purged of
asbestos components and thus the risk remained that
asbestos-containing components could still be fitted to Sea King
aircraft. Action has been taken to remove these components from the
supply chain.
Asbestos is fire resistant and was widely used in the 20th century
as an insulating material in boilers, pipework etc and notably in
building construction. Asbestos exposure can relate to occupation,
but there are many other sources in the environment. Contact with
asbestos does not produce acute symptoms but over time, typically
many years, a variety of chest conditions may develop, dependent on
the type of asbestos, and the level and duration of exposure.
If you are a veteran or former civilian employee and you consider
that you may have been exposed to asbestos on Sea King helicopters,
you may wish to complete and return an MoD Form 960 Asbestos --
Personal Record Annotation. This form is self certifying.
You should retain one copy, you may wish to pass one copy to your
general practitioner, and one copy should be returned to the MoD to
be placed on your personal file. The completed form should be
returned to:
Serving members of the Armed Forces and current civil servants, who
are concerned about possible exposure, should follow the
instructions in 2018DIN06-025 and complete an MoD Form 960 -
Personnel Record Annotation and pass the form to the local service
medical officer (for service personnel - hardcopy) or DBS HR
(Civilian personnel - electronic copy).
The War Disablement Pension and the Armed Forces Compensation
Scheme both make provision for any illness or injury caused by
service in HM Armed Forces. Awards are not made for exposure, but
for an injury or disorder including asbestos-related conditions.
Further details on how to make a claim under the War Pensions
Scheme, and regarding the conditions and applicable dates, are
available via the Veterans UK War Pensions page
Welfare support for veterans, including home visits where needed,
is also available from the MOD's Veterans Welfare Service the Civil
Service Injury Benefit Scheme (CSIBS) provides compensation to
civil servants who suffer a qualifying injury while on duty which
reduces their earnings capacity. The CSIBS covers all civil
servants, including employees who are not part of the Civil Service
Pension arrangements.
ASBESTOS UPDATE: NY Court Won't Reconsider Asbestos Judgment
------------------------------------------------------------
The National Law Review reported that the Northern District of New
York declined to reconsider a September 2018 decision on competing
motions for partial summary judgment we previously reported on in a
long-running reinsurance dispute related to asbestos liability
exposure. Subsequent to the court's decision, Century Indemnity Co.
moved for reconsideration of the court's denial of summary judgment
on its collateral estoppel defense and denial of its motion to
dismiss for lack of standing because the court allegedly overlooked
"controlling" evidence and decisions on these issues.
First, on the collateral estoppel claim, the court rejected
Century's argument that the court's September decision improperly
relied on a similar decision in a case involving Utica because that
decision was issued after the summary judgment briefing was
complete and the court cited the decision "without the benefit of
briefing" on the decision's impact. The court explained the
September decision merely recognized the similar decision as
involving a "similar estoppel argument" and did not improperly
"adopt" the decision's conclusions or impute a controlling effect
to the decision.
Second, on standing, the court disagreed with Century's contention
that the September decision relieved Utica of its burden to
establish standing. Harkening back to its September decision, the
court emphasized Utica submitted evidence "tending to establish"
standing and Century failed to "conclusively undermine" that
showing.
Thus, the court denied the motion for reconsideration.
Utica Mutual Ins. Co. v. Century Indemnity Co., Case No. 13-995
(USDC N.D.N.Y. Nov. 30, 2018).
ASBESTOS UPDATE: Rigsby Couple Sues Dow Chemical Over Lung Cancer
-----------------------------------------------------------------
St. Louis Record reported that a man alleges exposure to asbestos
during his employment in Georgia led him to develop lung cancer.
Jimmy Rigsby and Anna Rigsby filed a complaint on Nov. 26 in the
St. Louis 22nd Judicial Circuit Court against the Dow Chemical Co.,
et al. alleging negligence and other counts.
According to the complaint, Jimmy Rigsby alleges that at various
times during his career in Georgia beginning in 1964 and during his
military career, he was exposed to and inhaled or ingested asbestos
fibers emanating from certain products manufactured, sold,
distributed or installed by defendants.
The suit states that on or about Sept. 15, 2017, he first became
aware that he developed lung cancer, an asbestos-induced disease,
and that the disease was wrongfully caused.
The plaintiffs hold The Dow Chemical Co., et al. responsible
because the defendants allegedly negligently included asbestos
fibers in their products when adequate substitutes were available
and failed to provide adequate warnings and instructions concerning
the dangers of working with or around products containing asbestos
fibers.
The plaintiffs seek actual and compensatory damages of more than
$50,000, costs, interest and any further relief as the court deems
just and equitable. They are represented by Benjamin R. Schmickle
and Matthew C. Morris of SWMW Law LLC in St. Louis.
St. Louis 22nd Judicial Circuit Court case number 1822-CC11706
ASBESTOS UPDATE: Rockwell Automation Still Faces Suits at Sept. 30
------------------------------------------------------------------
Rockwell Automation, Inc. continues to defend itself against
personal injury lawsuits filed by people claiming exposure to
asbestos in certain product components, according to the Company's
Form 10-K filing with the U.S. Securities and Exchange Commission
for the fiscal year ended September 30, 2018.
The Company states, "We (including our subsidiaries) have been
named as a defendant in lawsuits alleging personal injury as a
result of exposure to asbestos that was used in certain components
of our products many years ago. Currently there are a few thousand
claimants in lawsuits that name us as defendants, together with
hundreds of other companies. In some cases, the claims involve
products from divested businesses, and we are indemnified for most
of the costs. However, we have agreed to defend and indemnify
asbestos claims associated with products manufactured or sold by
our former Dodge mechanical and Reliance Electric motors and motor
repair services businesses prior to their divestiture by us, which
occurred on January 31, 2007. We are also responsible for half of
the costs and liabilities associated with asbestos cases against
our former Rockwell International Corporation's divested
measurement and flow control business. But in all cases, for those
claimants who do show that they worked with our products or
products of divested businesses for which we are responsible, we
nevertheless believe we have meritorious defenses, in substantial
part due to the integrity of the products, the encapsulated nature
of any asbestos-containing components, and the lack of any
impairing medical condition on the part of many claimants. We
defend those cases vigorously. Historically, we have been
dismissed from the vast majority of these claims with no payment to
claimants.
"We have maintained insurance coverage that we believe covers
indemnity and defense costs, over and above self-insured
retentions, for claims arising from our former Allen-Bradley
subsidiary. Following litigation against Nationwide Indemnity
Company (Nationwide) and Kemper Insurance (Kemper), the insurance
carriers that provided liability insurance coverage to
Allen-Bradley, we entered into separate agreements on April 1, 2008
with both insurance carriers to further resolve responsibility for
ongoing and future coverage of Allen-Bradley asbestos claims. In
exchange for a lump sum payment, Kemper bought out its remaining
liability and has been released from further insurance obligations
to Allen-Bradley. Nationwide entered into a cost share agreement
with us to pay the substantial majority of future defense and
indemnity costs for Allen-Bradley asbestos claims. We believe that
this arrangement with Nationwide will continue to provide coverage
for Allen-Bradley asbestos claims throughout the remaining life of
the asbestos liability.
"We also have rights to historic insurance policies that provide
indemnity and defense costs, over and above self-insured
retentions, for claims arising out of certain asbestos liabilities
relating to the divested measurement and flow control business.
Following litigation against several insurers to pursue coverage
for these claims, we entered into separate agreements with the
insurers that resulted in both lump sum payments and
coverage-in-place agreements. We believe these arrangements will
provide substantial coverage for future defense and indemnity costs
for these asbestos claims throughout the remaining life of asbestos
liability.
"The uncertainties of asbestos claim litigation make it difficult
to predict accurately the ultimate outcome of asbestos claims.
That uncertainty is increased by the possibility of adverse rulings
or new legislation affecting asbestos claim litigation or the
settlement process. Subject to these uncertainties and based on
our experience defending asbestos claims, we do not believe these
lawsuits will have a material effect on our business, financial
condition or results of operations.
"We have, from time to time, divested certain of our businesses.
In connection with these divestitures, certain lawsuits, claims and
proceedings may be instituted or asserted against us related to the
period that we owned the businesses, either because we agreed to
retain certain liabilities related to these periods or because such
liabilities fall upon us by operation of law. In some instances
the divested business has assumed the liabilities; however, it is
possible that we might be responsible to satisfy those liabilities
if the divested business is unable to do so.
"In connection with the spin-offs of our former automotive
business, semiconductor systems business and Rockwell Collins
avionics and communications business, the spun-off companies have
agreed to indemnify us for substantially all contingent liabilities
related to the respective businesses, including environmental and
intellectual property matters.
"In conjunction with the sale of our Dodge mechanical and Reliance
Electric motors and motor repair services businesses, we agreed to
indemnify Baldor Electric Company for costs and damages related to
certain legal, legacy environmental and asbestos matters of these
businesses arising before January 31, 2007, for which the maximum
exposure would be capped at the amount received for the sale."
A full-text copy of the Form 10-K is available at
https://bit.ly/2FLM7DS
ASBESTOS UPDATE: Ship Builder Beats Asbestos Lawsuits
-----------------------------------------------------
Bloomberg Law reported that ship builder Huntington Ingalls Inc.
won dismissal of claims that a woman's death was caused by exposure
to asbestos brought home on her husband's work clothes.
Dolores Punch's daughter waited too long to file her claims, the
Eastern District of Louisiana said.
Wrongful death and survival claims in Louisiana must be filed
within one year of death. Punch died of mesothelioma on August 15,
2011, but her daughter, Judith Punch Rivera, didn't file suit until
June 8, 2017.
ASBESTOS UPDATE: Smith Couple Sues 20th Century Over Lung Cancer
----------------------------------------------------------------
Bree Gonzales of West Virginia Record reported that a Sandyville
husband and wife are suing dozens of asbestos
distributors/suppliers/manufacturers/installers, premises owners
and employers, alleging negligence, contaminated buildings, breach
of express/implied warranty, strict liability, tort, conspiracy,
misrepresentations by specific defendants and a post-sale duty to
warn.
Doyle M. Smith and Margaret Smith filed a complaint in Kanawha
Circuit Court against 20th Century Glove Corporation of Texas, also
known as Guardline Inc, et. al, alleging they exposed Doyle Smith
to contaminated premises.
According to the complaint, between 1960 and 1996, Doyle M. Smith,
74, was exposed to asbestos while he was a laborer, plant worker,
construction worker and mechanic working for the defendants. On
June 22, 2017, the suit says, Smith was diagnosed with lung cancer.
The plaintiffs allege the defendants were negligent in their acts
and some defendants are liable as premises owners and employers for
deliberate intent/intentional tort.
The Smiths seek trial by jury and seek damages. They are
represented by attorneys David P. Chervenick and Bruce E. Mattock
of Goldberg, Persky & White PC in Pittsburgh, and by Scott S. Segal
of The Segal Law Firm in Charleston.
Kanawha Circuit Court case number 18-C-1353
ASBESTOS UPDATE: Study Undermines Theory on Asbestos Lawsuits
-------------------------------------------------------------
Forbes reported that plaintiff experts who testify that even
extremely low levels of asbestos exposure can cause cancer may be
in trouble after a study of some 2 million women found no
difference between urban and rural residents in the rate of
mesothelioma, a deadly cancer of the chest lining that is normally
associated with asbestos.
The study in the journal Risk Analysis found rural mesothelioma
rates actually exceeded urban rates in more than half of the years
studied between 1973 and 2012, despite the fact ambient asbestos
exposures in urban areas are an order of magnitude higher due to
heavy use of asbestos in commercial construction until the 1970s.
The results appear incompatible with the idea that exposure to even
a tiny amount of asbestos, such as the trace amounts plaintiff
lawyers claim are in talcum powder, can cause mesothelioma. Unless
urban women use dramatically less talcum powder than their rural
counterparts, they would be expected to have higher rates of
mesothelioma given their daily exposure to 10 times as much ambient
asbestos. The implications of the article were so serious that one
plaintiff expert wrote a letter to the journal to question its
findings, prompting the study's authors to pen a highly critical
response.
The study also found female mesothelioma rates remained essentially
unchanged over the study period, in contrast to male mesothelioma
rates, which more than tripled between 1973 and 1992 before
declining again as the population of men exposed to high
occupational levels of asbestos shrank. Mesothelioma typically
takes several decades to manifest itself and has been found to be
closely associated with industrial exposure to the most dangerous
amphibole fibers used as high-temperature insulation in ships and
factories.
The flat mesothelioma rates for women -- who held comparatively few
such industrial jobs over the same period -- are consistent with
research suggesting many cases of mesothelioma have no connection
to asbestos.
The study is likely to be cited by defense lawyers as they seek to
disqualify plaintiff experts who are prepared to testify that small
exposures to asbestos can cause mesothelioma, said Oded Burger, an
associate with Goldberg Segalla in New York. To prove liability in
a tort case, plaintiffs must show asbestos was a "substantial
factor" in the chain of causation.
"It pulls the rug out from under the argument that just because a
level of exposure is above background, that that fact has any sort
of meaning in terms of the sufficiency of the exposure to cause
disease," Burger said.
For plaintiff lawyers, each diagnosis of mesothelioma now
represents hundreds of thousands of dollars in potential legal fees
as they negotiate settlements with an ever-growing list of
defendant companies, ranging from huge manufacturers like Ford
Motor Co. to individual hardware stores and plumbing supply houses.
It was the quest for such fees that drove Sheldon Silver, once the
most powerful legislator in New York, to cut a deal with a
mesothelioma physician to obtain the names of newly diagnosed
patients that he sold to Weitz & Luxenberg, a prominent plaintiff
law firm, in exchange for more than $3 million in fees. Silver was
convicted of bribery in May.
Asbestos plaintiffs rely on expert testimony to stay in court,
however. And nowhere is that testimony more critical than in the
talcum powder cases, where experts must be prepared to explain how
a daily dusting of baby powder can cause a cancer that most
epidemiological studies associate with much higher industrial
exposures.
Talcum powder manufacturers like Johnson & Johnson dispute there
are any asbestos fibers in their products, but plaintiff lawyers --
sometimes using samples they bought on eBay -- claim their experts
have found stray fibers. Attorney Mark Lanier won a $4.69 billion
verdict against Johnson & Johnson earlier this year in part by
showing jurors a drawing depicting "Johnson's Baby Powder" as the
factor pushing a woman with multiple potential sources of ovarian
cancer off a cliff.
Plaintiff lawyers are sure to point out the article in Risk
Analysis was authored by Meghan E. Glynn and colleagues at Cardno
ChemRisk, a consulting firm that works with defense lawyers.
Co-author Jennifer Sahmel was an expert for Colgate-Palmolive in a
California talc case that ended with a defense victory in 2016.
But the peer-reviewed study was conducted entirely with National
Cancer Institute data and doesn't challenge the broader theory that
high levels of amphibole asbestos exposure can cause mesothelioma.
It only undermines the idea that lower levels can be blamed, since
if that were true, urban residents would be expected to have much
higher rates of cancer.
In a letter to Risk Analysis, Murray Martin Finkelstein, a family
medicine doctor at the University of Toronto who serves as a
plaintiff expert in mesothelioma cases, said the authors "did not
take account of asbestos exposures arising from body and baby
powders." Using plaintiff estimates of the amount of asbestos in
baby powder, he said a person using "shaker and puff application"
of baby powder in a small bathroom would be exposed to 1 asbestos
fiber per cubic centimeter of air per day, equal to a cumulative
annual exposure several times the level of ambient exposure.
Finkelstein also cited research by Dr. Victor Roggli of Duke
University that found talc fibers in the lungs of 65% of
mesothelioma patients and more common in women than in men. He used
that to dispute the authors' conclusion that the 10-fold difference
in ambient asbestos levels between urban and rural women didn't
influence mesothelioma rates, since both groups of women presumably
used baby powder.
In an unusual response to Finkelstein's letter, the study's authors
said he relied on questionable research financed by plaintiff
lawyers to conclude there are any asbestos fibers in baby powder.
Other studies found no such contamination, they said, even in
samples used by the plaintiff expert.
They also questioned Finkelstein's comparison of the potential
exposure to a single daily dusting of baby powder to the
24-hour-a-day inhalation of asbestos fibers every human is exposed
to. Finally, they said they contacted Roggli of Duke University,
who "indicated that Dr. Finkelstein had misrepresented the results"
of his research. It is unclear what point he was trying to make
with the research anyway, they said: Finkelstein gave only the
levels of talc found in the lungs of mesothelioma patients with no
reference to the amounts in healthy individuals.
"The relatively constant rates of female pleural mesothelioma over
time in both urban and rural areas suggests that neither ambient
background asbestos concentrations, nor theoretical asbestos
exposures from contaminated cosmetic talc products (if any), have
collectively or individually influenced the risk of pleural
mesothelioma among females in the United States," the authors
concluded.
Finkelstein, in an e-mailed comment, said he had "no idea what they
mean" by misrepresentation of the Roggli data, because he used the
raw data from the Duke researcher's database.
The first wave of asbestos litigation targeted companies like
Johns-Manville that produced the most dangerous types of amphibole
asbestos insulation. After most of them were driven into bankruptcy
the lawyers moved on to manufacturers of products containing other
forms of asbestos, which epidemiological studies have shown are
much less dangerous, as well as companies that used, transported or
stored asbestos-containing products.
They have succeeded in court with theories that even low-level
exposures such as from brake pads can cause cancer, despite
numerous studies showing no excess rates of cancer for car
mechanics. Now lawyers are targeting small businesses like hardware
stores with lawsuits, as well as filing thousands of cases against
talcum powder manufacturers. The talc litigation may solve the
demographic problem illustrated by the study's finding of flat
mesothelioma rates for women over the past several decades. If that
is truly the background rate of mesothelioma in the population, the
lawyers need a theory to explain where it's coming from absent
occupational exposure -- and a defendant company to blame.
ASBESTOS UPDATE: Tenneco Faces Less Than 500 Cases at Sept. 30
--------------------------------------------------------------
Tenneco Inc. is still facing less than 500 active and inactive
cases initiated by claimants alleging health problems as a result
of exposure to asbestos, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended September 30, 2018.
The Company states, "For many years we have been and continue to be
subject to lawsuits initiated by claimants alleging health problems
as a result of exposure to asbestos. Our current docket of active
and inactive cases is less than 500 cases nationwide. A small
number of claims have been asserted against one of our subsidiaries
by railroad workers alleging exposure to asbestos products in
railroad cars. The substantial majority of the remaining claims
are related to alleged exposure to asbestos in our automotive
products although a significant number of those claims appear also
to involve occupational exposures sustained in industries other
than automotive.
"We believe, based on scientific and other evidence, it is unlikely
that claimants were exposed to asbestos by our former products and
that, in any event, they would not be at increased risk of
asbestos-related disease based on their work with these products.
Further, many of these cases involve numerous defendants, with the
number in some cases exceeding 100 defendants from a variety of
industries. Additionally, in many cases the plaintiffs either do
not specify any, or specify the jurisdictional minimum, dollar
amount for damages.
"As major asbestos manufacturers and/or users continue to go out of
business or file for bankruptcy, we may experience an increased
number of these claims. We vigorously defend ourselves against
these claims as part of our ordinary course of business.
"In future periods, we could be subject to cash costs or charges to
earnings if any of these matters are resolved unfavorably to us.
To date, with respect to claims that have proceeded sufficiently
through the judicial process, we have regularly achieved favorable
resolutions. Accordingly, we presently believe that these
asbestos-related claims will not have a material adverse impact on
our future consolidated financial position, results of operations
or liquidity."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2KFXBY5
ASBESTOS UPDATE: Trust Assessed $16.8K for Asbestos Violations
--------------------------------------------------------------
Worcester Telegram reported that the Massachusetts Department of
Environmental Protection has assessed Manchaug Trust of Sutton a
$16,813 penalty for violations of asbestos regulations that
occurred at a vacant commercial property undergoing renovation in
Sutton.
The trust bought the former American Legion Post building and was
in the process of renovating it when the violations occurred.
In September 2016, MassDEP inspectors responding to a complaint
observed that Manchaug Trust improperly removed asbestos-containing
transite roofing shingles and asbestos-containing heating system
insulation from pipes in the basement of the building. DEP required
the trust to retain a licensed asbestos contractor to implement a
DEP approved plan to cleanup and decontaminate all affected parts
of the property and properly package, label and dispose of all
asbestos-containing waste materials.
DEP regulations require notification to DEP 10 working days before
beginning any asbestos removal work so that the department can
conduct inspections to ensure compliance with environmental
regulations. The regulations establish certain work practices, such
as wetting, bagging and labeling asbestos-containing waste
materials during demolition or renovation work.
"Asbestos is a known carcinogen, and following required work
practices is imperative to protect workers as well as the general
public," said Mary Jude Pigsley, director of MassDEP's Central
Regional Office in Worcester. "Failure to do so will result in
penalties, as well as escalated cleanup, decontamination and
monitoring costs."
MassDEP is responsible for ensuring clean air and water, safe
management and recycling of solid and hazardous wastes, timely
cleanup of hazardous waste sites and spills and the preservation of
wetlands and coastal resources.
ASBESTOS UPDATE: WestRock Co. Had 735 PI Suits at Sept. 30
----------------------------------------------------------
WestRock Company continues to defend itself against approximately
735 personal injury lawsuits related to asbestos matters as of
September 30, 2018, according to the Company's Form 10-K filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended September 30, 2018.
The Company states, "We have been named a defendant in
asbestos-related personal injury litigation. To date, the costs
resulting from the litigation, including settlement costs, have not
been significant. As of September 30, 2018, there were
approximately 735 lawsuits. We believe that we have substantial
insurance coverage, subject to applicable deductibles and policy
limits, with respect to asbestos claims.
"We have valid defenses to these asbestos-related personal injury
claims and intend to continue to defend them vigorously. Should
the volume of litigation grow substantially, it is possible that we
could incur significant costs resolving these cases. We do not
expect the resolution of pending asbestos litigation and
proceedings to have a material adverse effect on our consolidated
financial condition or liquidity. In any given period or periods,
however, it is possible such proceedings or matters could have a
material adverse effect on our results of operations, financial
condition or cash flows."
A full-text copy of the Form 10-K is available at
https://bit.ly/2BGFrCT
ASBESTOS UPDATE: Wife Poisoned by Asbestos in Husband's Moustache
-----------------------------------------------------------------
Telegraph.co.uk reported that car factory worker who says he
unwittingly poisoned his wife with asbestos dust trapped in his
moustache and clothing is suing his former employer for GBP1m over
her death.
Lydia Carey's husband, John, 60, says that, from the day they met
in 1976, she breathed in asbestos fibres trapped on his work
overall, hair, moustache and sideburns.
He escaped unharmed, but Lydia died, aged 60, on November 27 this
year from asbestos-linked lung cancer, the High Court heard.
Asbestos fibres were transmitted from husband to wife during the
habitual rituals of daily life, said Mr Carey's barrister,
John-Paul Swoboda.
"All through the period she and John Carey would hug and kiss upon
seeing one another," he told Judge Karen Walden-Smith.
"As well as the asbestos on his clothes, Mr Carey had a full head
of hair, a moustache and sideburns in which asbestos dust would be
trapped until liberated by movement from -- say -- a hug," he
added.
Mr Carey, from Toddington, Bedfordshire, is now claiming damages
from Vauxhall Motors, at whose Luton and Dunstable sites he worked
between 1973 and 1979.
Lydia Carey was diagnosed in October 2017 with mesothelioma, an
incurable cancer notorious for the agony suffered by its victims,
and was just 60 when she died on November 27
The car firm denies that Mr Carey was exposed to hazardous amounts
of asbestos whilst working for Vauxhall or that he would have
"disturbed asbestos in the fabric of the building."
Mr Swoboda told the court fibres lay dormant in Lydia Carey's body
for 40 years before she developed lung cancer.
She was diagnosed in October 2017 with mesothelioma, an incurable
cancer notorious for the agony suffered by its victims, and was
just 60 when she died on November 27.
Vauxhall says all asbestos-related work at the plants was done by
specialist external contractors and it operated an overalls washing
scheme for its employees.
But, Mr Swoboda said the company had charged extra for the laundry
service, and insisted that Mr Carey worked in close proximity to
asbestos dust.
The couple wed in 1978, the court heard, and Mrs Carey regularly
washed her husband’s work overalls, he told the judge.
His work clothes were at times "black with dust," he added, which
even penetrated into the turnups of his trousers.
"Once married, Mr Carey would change from his work clothes when he
came home so as not to make the house dirty," said Mr Swoboda.
"Mrs Carey would knock and brush the dust off his work clothes, and
she remembered washing his blue overalls."
Much of Mr Carey's work was carried on at Vauxhall's Dunstable
plant, and Mr Swoboda claimed the factory was polluted by "huge
quantities of asbestos."
He worked alongside men removing or applying asbestos lagging to
pipes, and he recalled seeing workers mixing asbestos powder to
paste.
At times he had to "walk through, kneel or lie on asbestos dust and
debris on the floor to carry out his work," the barrister claimed.
"He swept asbestos dust and debris from the floor using a dustpan
and brush."
Mr Carey claims Vauxhall neglected to warn him of the dangers
linked to asbestos and should have provided him with protective
equipment.
And Mrs Carey's indirect exposure to dust and fibres over a
three-year window between 1976 and 1979 was enough for asbestos to
do its deadly work, argued Mr Swoboda.
But Vauxhall's QC, Paul Bleasdale, suggested other sources for Mrs
Carey's fatal illness.
Even if Mr Carey was exposed to asbestos when working for Vauxhall,
it would have been "very occasional if not minimal," he argued.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2018. All rights reserved. ISSN 1525-2272.
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